Federal Court of Australia

Electoral Commissioner v McQuestin [2025] FCAFC 188

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The primary judge imposed an aggregate penalty of $40,000 in respect of the respondent’s three contraventions of s 321D(5) of the Commonwealth Electoral Act 1918 (Cth) (the Electoral Act).

2    The only remaining ground of appeal asserts that the penalty imposed by the primary judge was manifestly inadequate.

3    The parties have jointly submitted that the penalty was manifestly inadequate and ought to be replaced with an aggregate penalty of $73,280.

4    I have had the advantage of reading the reasons for judgment of Charlesworth and Shariff JJ, who consider that the penalty was not manifestly inadequate. I have, respectfully, arrived at the opposite conclusion.

5    The respondent, Mr McQuestin, was the State Director of the Victorian Division of the Liberal Party (the Liberal Party Victoria). Mr McQuestin authorised the publication of electoral advertisements on 14, 19, 20 and 21 May 2022 in the Geelong Advertiser newspaper. The first three advertisements were published in the lead-up to the 2022 Federal election and the fourth on the day of the election.

6    Section 321D(5) of the Electoral Act requires, relevantly, that an electoral advertisement communicated by a registered political party must provide notification of certain particulars. The required particulars include the name of the registered political party, the relevant town or city of the party and the name of the natural person responsible for giving effect to the authorisation.

7    Section 321D(5) of the Electoral Act also requires that the particulars be given in accordance with any other requirements determined by the Electoral Commissioner pursuant to s 321D(7). Section 11 of the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021 (Cth) required, relevantly, that the particulars be: reasonably prominent; legible at a distance at which the communication was intended to be read; and in text that contrasted with the background on which the text appeared.

8    Before the primary judge, Mr McQuestin admitted that he had contravened s 321D(5) of the Electoral Act. The primary judge made three declarations, the third of which was in the following terms:

3.    On 19 May 2022, the respondent contravened s 321D(5) of the Electoral Act by failing to ensure that the authorisation particulars, as notified in an electoral advertisement that was published in the Geelong Advertiser on 20 and 21 May 2022, were:

(a)    reasonably prominent;

(b)    legible at a distance at which the communication was intended to be read; and

(c)    in a text that contrasted with the background on which the text appeared,

as required by ss 11(3)(a), (b) and (d) of the Authorisation Determination and s 321D(7) of the Electoral Act.

9    The primary judge made similar declarations in respect of the advertisements published on 14 and 19 May 2022.

10    Section 321D(6) of the Electoral Act provides, relevantly, that a contravention of s 321D(5) by an entity that is not a legal person is taken to have been committed by an officer of the entity who engaged in the conduct or made the omission constituting the contravention.

11    The Liberal Party Victoria is an unincorporated body. Mr McQuestin was the person responsible for authorising the advertisements. Under s 321D(6), the contraventions of s 321D(5) were attributed to Mr McQuestin.

12    The effect of s 321D(5) of the Electoral Act and s 82(5)(b) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (the Regulatory Powers Act) was that the maximum penalty for a single contravention was 120 penalty units. At the relevant time, a penalty unit was $222 and the maximum penalty for a single contravention was $26,640. The maximum aggregate penalty available for the three contraventions was $79,920.

13    It may be noted that under s 82(5)(a) of the Regulatory Powers Act, the maximum penalty for a corporation is five times the maximum penalty for an individual.

14    The advertisements published in the Geelong Advertiser on 14, 20 and 21 May 2022 supported the Liberal Party Victoria’s candidate in the electoral division of Corangamite. The advertisement published on 19 May 2022 opposed the Australian Labor Party’s (ALP) candidate in Corangamite.

15    When considering the nature and extent of the contraventions, the primary judge at [58] accepted the following submissions advanced on behalf of Mr McQuestin:

…First, the contraventions were isolated incidents across an extensive electoral advertisement programme. Second, the contraventions were limited, having occurred on three occasions over a period of only one week. Third, there is no evidence that the contraventions were deliberate. Fourth, there is no evidence that any problems with the notification of the required particulars were brought to Mr McQuestin’s attention, or that he was aware of such issues during the period of the contraventions. Fifth, the contravening advertisements contained deficient particulars, not the absence of particulars. It was not a case where no steps were taken to comply with s 321D(5) of the Electoral Act.

16    The primary judge observed that the likely damage to the electoral process as a result of the contravening conduct was a relevant factor. In that respect, his Honour noted that the total distribution of the Geelong Advertiser on the relevant dates was over 64,000 copies. His Honour inferred that the contravening advertisements were likely to be seen by tens of thousands of voters.

17    The primary judge found the failure to include legible particulars in the advertisement published on 19 May 2022 opposing the ALP’s candidate was a “serious failure” because the advertisement did not otherwise identify the person or political party on whose behalf the advertisement was placed. His Honour concluded that the contraventions in respect of the other two advertisements were less serious in comparison.

18    His Honour noted that the respondent had not adduced any evidence to explain why and how the contraventions occurred and, in particular, there was no evidence about any processes or procedures to ensure compliance with the Electoral Act.

19    The primary judge found that the Liberal Party Victoria would pay the penalty imposed upon Mr McQuestin and that it was therefore appropriate to take into account the financial circumstances of the Liberal Party Victoria. In the 2021/2022 financial year, the Liberal Party Victoria’s total receipts were approximately $21.1 million and its total payments were approximately $24.4 million.

20    The primary judge noted the respondent had ultimately made extensive admissions and avoided the need for a contested hearing. His Honour also noted that the respondent had not been previously found to have engaged in any similar conduct.

21    The primary judge concluded that the following penalties should be imposed in respect of the contraventions:

(a)    $10,000 for the advertisement published on 14 May 2022;

(b)    $15,000 for the advertisement published on 19 May 2022; and

(c)    $15,000 for the advertisement published on 20 and 21 May 2022.

22    The primary judge concluded at [76]:

The admitted contraventions undermined the important objective of allowing voters to know who is communicating electoral matter and accordingly protecting Australia’s system of representative democracy. In my view, penalties of that magnitude are required to ensure that the Victorian Division of the Liberal Party, as a major participant in Australia’s political process and government, takes greater care to comply with its obligations under Part XXA of the Electoral Act. A higher penalty is warranted in respect of the [19 May] Advertisement because, as discussed above, that advertisement did not otherwise identify the person or political party on whose behalf the advertisement was placed. It therefore had greater potential to cause harm to the democratic process. A higher penalty is also warranted in respect of the Second Asher Advertisement because it was published in two editions of the Geelong Advertiser on two different days, resulting in a larger volume of communications.

23    In Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 (Reckitt Benckiser), the Full Court considered a ground of appeal asserting that a civil penalty was manifestly inadequate.

24    The Full Court observed at [49] that, “In the absence of specific error, the outcome reached either will or will not be one which was reasonably open”. The Full Court went on to explain at [52]:

…[E]rror may be inferred from a result that cannot have been arrived at without some kind of operative error. The influence of the reasons given for the result arrived at on this process will vary. Reasons are not to be ignored, but nor do they necessarily confine in a rigid or inflexible way the scope of the appellate inquiry. It may be legitimate to have regard to what was said and not said in order to identify how the asserted erroneous result was reached. But for error to be inferred from the result, the result must be one which was not open on the evidence or facts found or agreed.

25    The Full Court at [55] cited the following passage from the judgment of Gleeson CJ and Hayne J who observed in Dinsdale v The Queen (2000) 202 CLR 321 at [6]:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive…

26    A contravention of s 321D(5) of the Electoral Act is, by its nature, likely to be serious. In Smith v Oldham (1912) 15 CLR 355, Griffith CJ observed 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.

27    Section 321C(1) provides that the objects of Part XXA (which includes s 321D) are to promote free and informed voting at elections by enhancing, relevantly: (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; and (c) the traceability of communications of electoral matter, by ensuring that obligations imposed by Part XXA in relation to those communications can be enforced.

28    Section 321C(2) then provides that Part XXA aims to achieve these objects by, inter alia: (a) requiring the particulars of the person who authorised the communication of an electoral advertisement to be notified; and (b) ensuring that the particulars are clearly identifiable.

29    The insertion of ss 321B-321H was a consequence of recommendations in the 2016 Federal Election First Interim Report by the Joint Standing Committee on Electoral Matters. This report recognised the importance of transparency in the authorisation of electoral material to provide, “clear context for the message and [to allow] voters to have confidence in the message or point of view expressed in that material”, while ensuring that, “the person or organisation putting the information into the public domain is accountable for that information” (at [1.9]).

30    In the Second Reading Speech for the Electoral and Other Legislation Amendment Bill 2017 (Cth), the Minister stated that the amendments were intended to promote, “free and informed voting at elections and referendums by allowing electors to know who is communicating with them”.

31    In Laming v Electoral Commissioner of the Australian Electoral Commission [2025] HCA 31 at [24], Gageler CJ and Gleeson and Jagot JJ observed that the objects identified in s 321C(1) are, “of fundamental importance to the proper functioning of Australian democracy”.

32    In this case, the contraventions were not as serious as they would have been if the required particulars were omitted altogether. However, the advertisements were not reasonably prominent; were not legible at the distance the advertisements were intended to be read; and were in a text that was not contrasted with the background. Such failures to comply with statutory obligations imposing legibility requirements for the purpose of promoting free and informed voting at elections must be regarded as serious, particularly when the contraventions involved the conduct of a major political party.

33    In the parties’ Agreed Statement of Facts, Mr McQuestin admitted that:

The Liberal Party VIC is a major political party that regularly engages in electoral campaigns and will likely participate in electoral campaigns in the future.

34    A contravention of s 321D of the Electoral Act must be regarded as more serious when it involves the default of a major political party than, for example, a similar contravention by an individual acting without the support and resources of a major political party. As the Liberal Party Victoria is an unincorporated association, it escapes the exposure that a corporation would have to a penalty five times higher than the penalty for an individual. However, in substance the penalty is being imposed for the contravening conduct of the organisation. The appropriate penalty to be imposed on Mr McQuestin must be determined by reference to the conduct of a sophisticated political organisation.

35    The contravening advertisements, being published in the Geelong Advertiser, were evidently intended to target and influence voters in the Corangamite Electoral Division in the immediate lead-up to the Federal election. On each of 14 and 21 May 2022, over 20,000 copies of the Geelong Advertiser were distributed and on each of 19 and 20 May 2022, over 10,000 copies were distributed. The advertisements were paid for and obviously intended to have a large reach. They are likely to have been viewed by tens of thousands of voters in the Corangamite Electoral Division. The timing, targeted nature and extensive reach of the advertisements contributes to the seriousness of the contraventions.

36    Mr McQuestin approved the content of the advertisements and authorised their publication. He admits that he was aware of his obligations with respect to the authorisation of electoral advertisements under the Electoral Act. The primary judge found there was no evidence that the contraventions were deliberate, but also found that Mr McQuestin did not adduce any evidence to explain why and how the contraventions occurred. Whatever the explanation, in view of Mr McQuestin’s approval and authorisation of the advertisements despite his knowledge of the requirements under the Electoral Act, the contraventions involved a serious dereliction of his obligations.

37    In addition, in the absence of any explanation for the contraventions or evidence of any systems in place to avoid contraventions, there was no evidence of any action taken by the Liberal Party Victoria to ensure that similar contraventions will not occur again. It is appropriate to infer that Mr McQuestin’s evidence would not have assisted him on the question of the risk of similar contraventions in the future: cf Jones v Dunkel (1959) 101 CLR 298 at 308-309. It is appropriate to infer there remains such a risk. Since the Liberal Party Victoria regularly engages in electoral campaigns, specific deterrence is an important consideration.

38    A penalty should not be set at a level where it is seen as merely a “cost of doing business”: Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 (Pattinson) at [17]; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [66]; Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 at [62]. In Electoral Commissioner of the Australian Electoral Commission v Laming [2024] FCAFC 109, Logan J (Perry and Meagher JJ agreeing) observed at [40] that, “the potential reward in this type of contravening conduct is not directly monetary but rather electoral advantage”. The Liberal Party Victoria paid the Geelong Advertiser approximately $14,000 for the four advertisements. It is a well-resourced organisation that in 2021/2022 had total receipts of $21.1 million. In that year, it made total payments of $24.4 million, much of which, it should be inferred, must have been for discretionary political advertising. In that light, an aggregate penalty of $40,000 does not seem adequate to achieve specific deterrence, nor deterrence of like contraventions by other major political organisations.

39    The only other case in which penalties have been imposed for contraventions of s 321D(5) of the Electoral Act is Electoral Commissioner of the Australian Electoral Commission v Laming (No 2) [2023] FCA 917, where I imposed penalties totalling $25,000 for three contraventions. That case involved three posts on a Facebook page by an individual member of Parliament that were viewed by a total of 28 people. The circumstances are not comparable to those of the present case.

40    The question of manifest inadequacy cannot be approached by simply assessing the penalty imposed as a percentage of the maximum penalty that was available to be imposed. In Pattinson at [53], the High Court referred to a passage from Reckitt Benckiser at 155-156 with approval, and continued:

[54]    Two aspects of the Full Court’s reasoning in this passage from Reckitt Benckiser deserve particular emphasis here. The first is their Honours’ recognition that the maximum penalty is “but one yardstick that ordinarily must be applied” and must be treated “as one of a number of relevant factors”. As has already been seen, other factors relevant for the purposes of the civil penalty regime include those identified by French J in [Trade Practices Commission v CSR Ltd [1990] FCA 762].

[55]    The second point is that the maximum penalty does not constrain the exercise of the discretion under s 546 (or its analogues in other Commonwealth legislation), beyond requiring “some reasonable relationship between the theoretical maximum and the final penalty imposed”. This relationship of “reasonableness” may be established by reference to the circumstances of the contravenor as well as by the circumstances of the conduct involved in the contravention. That is so because either set of circumstances may have a bearing upon the extent of the need for deterrence in the penalty to be imposed. And these categories of circumstances may overlap.

41    In the present case, the maximum penalty of $26,640 for a single contravention, or $79,920 in aggregate, is a relevant and significant factor, but so too are the circumstances of the contraventions and the contravener. In the circumstances I have outlined, I accept the parties’ submission that the penalty of $40,000 is manifestly inadequate to meet the purpose of general and specific deterrence.

42    The parties are agreed that it is appropriate to instead impose an aggregate penalty of $73,280. In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at [48], the High Court made it clear that where the parties to a civil penalty proceeding have jointly proposed a penalty, “the court is not bound by the figure suggested by the parties”. Rather, the Court asks, “whether their proposal can be accepted as fixing an appropriate amount” (emphasis in original); and for that purpose, the Court, “must satisfy itself that the submitted penalty is appropriate”.

43    In Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24, the Full Court summarised the relevant principles as follows:

[125]    First, the Court must be persuaded that the penalty proposed by the parties is appropriate. The agreement of the parties cannot bind the Court in any circumstances to impose a penalty which it does not consider to be appropriate.

[126]    Second, if the Court is persuaded of the accuracy of the parties’ agreement as to facts and consequences, and that the agreed penalty jointly proposed is an appropriate remedy in all the circumstances, it would be highly desirable in practice for the Court to accept the parties’ proposal and therefore impose the proposed penalty. The desirability of the Court accepting a proposed agreed penalty which it is persuaded is an appropriate penalty derives primarily from a public policy consideration; the promotion of predictability of outcome in civil penalty proceeding. Predictability of outcome encourages corporations to acknowledge contraventions, which, in turn, assists in avoiding lengthy and complex litigation. It should be emphasised, however, that this public policy consideration is but one of the relevant considerations to which the Court must have regard and, more significantly, it cannot override the statutory directive for the Court to impose a penalty that is determined to be appropriate.

[127]    Third, in considering whether the agreed and jointly proposed penalty is an appropriate penalty, it is necessary to bear in mind that there is no single appropriate penalty. Rather, there is a permissible range of penalties within which no particular figure can necessarily be said to be more appropriate than another. The permissible range is determined by all the relevant facts and consequences of the contravention and the contravener’s circumstances. An agreed and jointly proposed penalty may be considered to be “an” appropriate penalty if it falls within that permissible range. It is unlikely to be considered an appropriate penalty if it falls outside that range.

[128]    It should be emphasised in this context, however, that even though the process in determining whether an agreed and jointly proposed penalty is an appropriate penalty involves or includes determining whether that penalty falls within the permissible range of penalties, having regard to all the relevant facts and circumstances, it does not follow that the Court’s task can be said to amount to no more than determining whether the proposed penalty falls within the permissible range, as the Commission’s submission tended to suggest. Nor can it be said that the Court is bound to start with the proposed penalty and to then limit itself to considering whether that penalty is within the permissible range.

[129]    Fourth, in considering whether the proposed agreed penalty is an appropriate penalty, the Court should generally recognise that the agreed penalty is most likely the result of compromise and pragmatism on the part of the regulator, and to reflect, amongst other things, the regulator’s considered estimation of the penalty necessary to achieve deterrence and the risks and expense of the litigation had it not been settled. The fact that the agreed penalty is likely to be the product of compromise and pragmatism also informs the Court’s task when faced with a proposed agreed penalty. The regulator’s submissions, or joint submissions, must be assessed on their merits, and the Court must be wary of the possibility that the agreed penalty may be the product of the regulator having been too pragmatic in reaching the settlement.

(Citations omitted).

44    Taking into account these principles, the findings of fact made by the primary judge and the particular matters I have emphasised, I am satisfied that the aggregate penalty proposed by the parties is appropriate. Section 85(1) of the Regulatory Powers Act authorises a single penalty where multiple contraventions form a series of contraventions of a similar character.

45    I would set aside the order of the primary judge imposing an aggregate penalty of $40,000 and substitute an order that Mr McQuestin pay an aggregate penalty of $73,280.

Associate:    

Dated:    16 December 2025

CHARLESWORTH AND SHARIFF JJ:

1.    INTRODUCTION

46    These reasons concern an appeal instituted by the Electoral Commissioner of the Australian Electoral Commission (the Electoral Commissioner) from the orders and decision of the primary judge in Electoral Commissioner of the Australian Electoral Commission v McQuestin [2024] FCA 287 (the primary judgment or PJ).

47    The primary judgment related to contraventions said to have arisen from three electoral advertisements that were authorised by the Victorian Division of the Liberal Party (the Victorian Liberal Party) and that were published in the Geelong Advertiser newspaper on 14, 19, 20 and 21 May 2022 (the Contravening Advertisements) in the lead up to and on the day of the 2022 federal election that was held on Saturday, 21 May 2022.

48    Two of the Contravening Advertisements (the First Fisher Advertisement published on 14 May 2022 and the Second Fisher Advertisement published on 20 and 21 May 2022) were supportive of Ms Stephanie Asher, the Victorian Liberal Party’s candidate for the federal election in the electoral division of Corangamite. The third Contravening Advertisement (the Anti-Coker Advertisement published on 19 May 2022) contained material that opposed the election of Ms Libby Coker, the Australian Labor Party candidate and sitting member in the electoral division of Corangamite.

49    Part XXA of the Electoral Act 1918 (Cth) (the Electoral Act) relates to the authorisation of “electoral matter” which is matter communicated or intended to be communicated for the dominant purpose of influencing the way electors vote in a federal election. Section 321D of the Electoral Act provides that, in certain circumstances, electoral advertisements must contain specified “particulars” which comprise a statement of the person or entity who approved the content of the advertisement. Where the person or entity who approved the advertisement is a registered political party, the required particulars are the name of the party, the town or city in which it is located, and the name of the individual responsible for giving effect to the authorisation (that is, the individual who approved the advertisement on behalf of the political party). Relevantly, the particulars must be reasonably prominent, be legible at a distance at which the advertisement is intended to be read and be in a text that contrasts with the background on which the text appears.

50    The Electoral Commissioner alleged that the Contravening Advertisements did not comply with s 321D(5) of the Electoral Act in that they did not contain legible particulars that were required to be published to the effect that they were authorised by the Victorian Liberal Party. At the relevant time, Mr McQuestin was the State Director of the Victorian Division of the Liberal Party and was the person responsible for authorising the Contravening Advertisements. The Victorian Liberal Party was, and is, an unincorporated body and, in those circumstances, the Electoral Act attributes liability to Mr McQuestin as an officer of that Party acting in his actual authority. Mr McQuestin admitted the contraventions but there was a dispute between the parties as to the number of contraventions that had arisen and the appropriate penalty (if any) to be imposed in respect of those contraventions.

51    The penalty for a single contravention of s 321D was at the relevant time, and remains, 120 penalty units. At the time of the relevant contraventions, a single penalty unit was $222. Accordingly, the theoretical maximum penalty for a single contravention was $26,640.

52    The primary judge found that Mr McQuestin contravened s 321D(5) of the Electoral Act on three occasions and imposed a total pecuniary penalty of $40,000 in respect of those three contraventions as follows:

(a)    $10,000 in respect of the First Asher Advertisement;

(b)    $15,000 in respect of the Anti-Coker Advertisement; and

(c)    $15,000 in respect of the Second Asher Advertisement.

53    Initially, the Electoral Commissioner’s appeal sought to challenge (a) the finding made by the primary judge that there were only three contraventions of the Electoral Act, and (b) the quantum of the total penalty imposed by the primary judge on the ground that it was manifestly inadequate. However, as explained below, the subject matter of the appeal changed substantively as a result of the decision of the High Court in Laming v Electoral Commissioner of the Australian Electoral Commission [2025] HCA 31; 99 ALJR 1260 (Laming HC). Following that decision, the Electoral Commissioner pressed only one ground of appeal, being that the penalty imposed by the primary judge was manifestly inadequate. As to this sole remaining ground of appeal, the parties jointly submitted that the appeal should be upheld on the ground that the aggregate penalty of $40,000 imposed by the primary judge was manifestly inadequate, and that a penalty in total of $73,280 should be imposed.

54    For the reasons that follow, we are not satisfied that the primary judge erred. Accordingly, we would dismiss the appeal with no order as to costs. Before addressing why we have reached this conclusion, it is necessary to set out the history of the appeal.

2.    THE HISTORY OF THE APPEAL

55    As adverted to above, an issue between the parties in the proceedings below was as to the number of contraventions of s 321D(5) of the Electoral Act arising from the publication of the Contravening Advertisements. The Electoral Commissioner submitted that there was a contravention on each occasion that the Contravening Advertisements were published which was to be determined by the circulation of the Geelong Advertiser. On the other hand, Mr McQuestin submitted that there were only three contraventions which was determined by reference to the act of authorisation of each of the Contravening Advertisements.

56    In preferring Mr McQuestin’s submissions, the primary judge agreed with the conclusions reached by Rangiah J in Electoral Commissioner of the Australian Electoral Commission v Laming (No 2) [2023] FCA 917 (Rangiah J) (Laming First Instance Decision), though expressed his reasons in different terms: PJ [45].

57    On 23 August 2024, the Laming First Instance Decision was overturned: see Electoral Commissioner of the Australian Electoral Commission v Laming [2024] FCAFC 109 (Logan, Perry and Meagher JJ) (Laming Full Court Decision). In light of the Laming Full Court Decision, the Electoral Commissioner appealed the primary judgment on the basis that the primary judge:

(a)    erred as to the proper construction of s 321D(5) (Ground 1);

(b)    as a result of that error of construction, erred in the imposition of penalties (Ground 2);

(c)    erred in finding that there was a single contravention, rather than two separate contraventions, in respect of the advertisements which were published in separate editions of the Geelong Advertiser on 20 May 2022 and 21 May 2022 and in imposing a single penalty in respect of those advertisements (Grounds 3 and 4); and

(d)    irrespective of the other Grounds, erred in imposing penalties that were manifestly inadequate (Ground 5).

58    Initially, Mr McQuestin opposed Ground 1 and informed the Court that he wished to challenge the correctness of the Laming Full Court Decision but subsequently abandoned this course. Thereafter, the parties informed the Full Court that they had reached agreement as to the number of declarations that should be made and as to the quantum of the penalty that should be imposed, being $150,000.

59    The Electoral Commissioner’s appeal was heard on 15 November 2024. After reserving judgment, there were further developments. On 5 December 2024, the High Court granted Mr Laming special leave to appeal from the Full Court’s decision. On 13 August 2025, the High Court upheld Mr Laming’s appeal.

60    On 26 August 2025, the Full Court invited the parties to indicate which course they wished to take in light of the Laming HC decision.

61    Seven weeks later, the parties informed the Full Court that they had “reached an agreed revised position” and requested leave to file submissions over the course of the following three weeks. The Full Court indicated it would be minded to grant leave but inquired about what the “agreed revised position” was and what submissions were sought to be made. The Electoral Commissioner then informed the Full Court that in view of the Laming HC decision, he had resolved to abandon Grounds 1 to 4 but continued to press Ground 5 by which he contended that the penalties imposed by the primary judge were “manifestly inadequate”. The Electoral Commissioner further informed the Full Court that Mr McQuestin consented to the appeal being upheld on the basis that the penalty was manifestly inadequate and that the parties agreed the penalty imposed by the primary judge should be set aside and substituted with a penalty in total of $73,280.

62    The parties were invited to provide short written submissions addressing their respective positions. The submissions of the Electoral Commissioner sought to largely repeat his earlier submissions made as to the manifest inadequacy of the penalty imposed by the primary judge. The Electoral Commissioner submitted that the following penalties were appropriate:

(a)    $20,000 for the First Asher Advertisement;

(b)    $26,640 for the Anti-Coker Advertisement; and

(c)    $26,640 for the Second Asher Advertisement.

63    Mr McQuestin’s submissions were brief and agreed with the position taken by the Electoral Commissioner.

3.    THE PRIMARY JUDGE’S REASONS ON PENALTY

64    There was no dispute between the parties in the proceeding below as to the relevant facts and circumstances giving rise to the admitted contraventions. The primary judge therefore determined the matter on uncontroversial facts, including those deposed to in affidavits that were read before his Honour and those set out in a statement of agreed facts which was extracted in the primary judgment in full: see PJ [16].

65    The presently relevant facts and circumstances may be summarised as follows:

(a)    the 2022 Australian Federal Election was conducted on 21 May 2022;

(b)    in the campaign in the lead up to the Federal Election, the Victorian Liberal Party authorised electoral advertisements to be published throughout Victoria;

(c)    on 14, 19, 20 and 21 May 2022, the Geelong Advertiser published its daily newspaper which contained three different forms of advertisements placed by the Victorian Liberal Party;

(d)    the number of hardcopy print editions of the Geelong Advertiser distributed on those dates was as follows:

(i)    on 14 May 2022, 15,634 copies of the Geelong Advertiser were distributed for retail sale, 5,607 were delivered to subscribers and 266 were delivered to hotels;

(ii)    on 19 May 2022, 7,006 copies of the Geelong Advertiser were distributed for retail sale, 3,858 were delivered to subscribers and 269 were delivered to hotels;

(iii)    on 20 May 2022, 6,341 copies of the Geelong Advertiser were distributed for retail sale, 3,853 were delivered to subscribers and 273 were delivered to hotels; and

(iv)    on 21 May 2022, 15,774 copies of the Geelong Advertiser were distributed for retail sale, 5,583 were delivered to subscribers and 266 were delivered to hotels;

(e)    the first form of advertisement, referred to as the “First Asher Advertisement”:

(i)    was published on 14 May 2022;

(ii)    supported Ms Asher, a Liberal Party (Victoria) candidate in Corangamite; and

(iii)    contained particulars that were in an extremely small font and nearly illegible;

(f)    the second form of advertisement, referred to as the “Anti-Coker Advertisement”:

(i)    was approved by Mr McQuentin on 18 May 2022;

(ii)    was published on 19 May 2022;

(iii)    opposed Libby Coker, an Australian Labor Party candidate in Corangamite; and

(iv)    contained particulars that were in an extremely small font and nearly illegible;

(g)    the third form of advertisement, referred to as the “Second Asher Advertisement”;

(i)    was published on 20 and 21 May 2022;

(ii)    supported Ms Asher; and

(iii)    contained particulars that were in an extremely small font and nearly illegible; and

(h)    the Victorian Liberal Party is not a legal person and therefore Mr McQuestin, as the officer of the entity who, acting in his actual or apparent authority, engaged in the conduct or made the omission constituting the contravention of s 321D is taken to have contravened that provision.

66    Having regard to these factual matters, the primary judge found that the particulars in the Contravening Advertisements were not reasonably prominent and were not legible at a distance at which the communication was intended to be read or in a text that contrasted with the background on which the text appeared as required by ss 11(3)(a), (b) and (d) of the authorisation determination of the Electoral Commissioner (being the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021 (Cth)): PJ [19]. The primary judge found that the Contravening Advertisements thereby failed to comply with the requirements relating to notifying particulars for printed communications in contravention of s 321D(5) of the Electoral Act.

67    The primary judge then addressed whether and what declaratory relief should be granted before turning to the appropriate pecuniary penalty. His Honour observed that the Electoral Commissioner sought an aggregate penalty in respect of the admitted contraventions in the range of $100,000 to $150,000, and that Mr McQuestin considered a pecuniary penalty to be unnecessary in light of the significant adverse reputational impacts associated with the declarations of contravention, or that any penalty should be limited to $20,000: PJ [26]–[28].

68    The primary judge determined that a pecuniary penalty was necessary to serve the objective of deterrence and to deter carelessness of the kind his Honour found the Victorian Liberal Party had engaged in by failing to have in place effective procedures to ensure compliance with s 321D(5) of the Electoral Act: PJ [29]. Before assessing the appropriate penalty, the primary judge addressed the parties’ submissions as to the number of contraventions of s 321D(5) and rejected the Electoral Commissioner’s submissions that Mr McQuestin engaged in a contravention on each occasion a physical copy of the Geelong Advertiser containing a contravening advertisement was read. Relevantly, the primary judge noted that given the total number of physical copies distributed, the total number of readers was potentially over 64,000: PJ [30].

69    The primary judge then found that Mr McQuestin contravened s 321D(5) on three occasions and noted that the maximum penalty for each contravention was $26,640: PJ [56]–[57].

70    Having made these findings, the primary judge turned to examine the facts and circumstances relevant to the assessment of penalty, including those identified by French J in Trade Practices Commission v CSR Ltd [1990] FCA 521; [1991] ATPR ⁋41-076 at 52,152–52,153. His Honour’s reasons span 20 paragraphs and disclose consideration of matters organised under the following headings:

(a)    nature and extent of the contraventions: PJ [58];

(b)    nature and extent of any loss or damage suffered because of the contravention: PJ [59]–[62];

(c)    circumstances in which the contraventions took place: PJ [63]–[65];

(d)    history of similar conduct: PJ [66];

(e)    benefit derived as a result of the contravention: PJ [67];

(f)    size of the contravenor: PJ [68]–[72];

(g)    cooperation: PJ [73]; and

(h)    conclusion on penalty: PJ [74]–[77].

71    In considering the nature and extent of the contraventions, the primary judge found that the contraventions were isolated incidents in an extensive electoral advertising programme and were limited, having only occurred on three occasions during a single week: PJ [58]. The primary judge also observed that there was no evidence that the contraventions were deliberate or that the problems were brought to Mr McQuestin’s attention or that he was otherwise aware of them. The primary judge further identified that the particulars were deficient but not absent, and that this was not a case where no steps had been taken to comply with s 321D(5) of the Electoral Act.

72    In considering the nature and extent of the loss or damage suffered, the primary judge identified that it was not possible to identify the total number of times that the contravening advertisements had been read but inferred from the total distribution that it was likely to have been seen by tens of thousands of voters: PJ [61]. His Honour underscored that this was a significant matter. Furthermore, the primary judge distinguished the Anti-Coker Advertisement from the two Asher Advertisements, reasoning that the deficiencies of the particulars in the former advertisement constituted a more serious failure because it did not otherwise identify the person or political party on whose behalf it was placed: PJ [62]. In contrast, the Asher Advertisements were otherwise identifiable as Liberal Party advertisements.

73    In considering the circumstances in which the contraventions took place, the primary judge noted that there was no evidence as to how or why the contraventions occurred or as to the compliance processes or procedures applied by the Victorian Liberal Party: PJ [63]. The primary judge accepted that the final days of a federal election campaign may be busy but observed that the need to protect free and informed voting at this time was not diminished but instead heightened: PJ [64]. His Honour found that the process and procedures in place, if any, were insufficiently robust or systematic to prevent the contraventions and recognised the need to ensure that these processes were strengthened: PJ [65].

74    In considering the history of similar conduct and the benefit derived from the conduct, the primary judge noted that there had been no finding in the past that Mr McQuestin had engaged in any similar conduct and there was no evidence the advertisements gave greater preference to Ms Asher, the Liberal Party candidate, or lesser preference to Ms Coker, the Labor Party candidate, and acknowledged that Ms Asher had in any event not succeeded at the election: PJ [67].

75    In considering the size of the contravener, the primary judge noted that the statutory proscription in s 321D(5) is directed to the “notifying entity” who approved the electoral advertisements and observed that the Victorian Liberal Party, as the notifying entity, would have been liable for the contraventions if not for the fact that it is not an incorporated body and is not a legal person. In the circumstances, the primary judge reasoned that the objective of deterrence can be seen to be directed to both the Victorian Liberal Party and Mr McQuestin, as the relevant officer responsible for the conduct or omissions that resulted in the contraventions: PJ [70].

76    Importantly, for reasons that will become clear, the primary judge expressly acknowledged that if a penalty is to be borne by the officer to whom liability is attributed, a lower penalty would ordinarily be imposed than would otherwise be the case if it were to be borne by the political party instead: [70]. The primary judge acknowledged that this was not the case here as Mr McQuestin informed the Court that the Victorian Liberal Party would ultimately pay any penalty on his behalf: PJ [70]–[71]. It was further observed that the financial circumstances of the Victorian Liberal Party could therefore appropriately be taken into account, and that the income and expenses disclosed by the evidence were significant: PJ [71]–[72].

77    The primary judge then concluded that the appropriate penalties were $10,000 for the First Asher Advertisement, $15,000 for the Anti-Coker Advertisement, and $15,000 for the Second Asher Advertisement (which was published in two editions and on two days): PJ [74]–[76]. In imposing these penalties, the primary judge acknowledged that the contraventions “undermined the important objective of allowing voters to know who is communicating electoral matter and accordingly protecting Australia’s system of representative democracy”: PJ [76]. Further, his Honour expressed his view that penalties of that magnitude were required to ensure that the Victorian Liberal Party as a “major participant in Australia’s political process and government” will take greater care to comply with the obligations under the Electoral Act: PJ [76].

4.    THE PARTIES’ CONTENTIONS

78    In his initial submissions, the Electoral Commissioner contended that the penalties imposed by the primary judge were “so plainly and clearly inadequate to secure deterrence that the Court can infer the penalty discretion had miscarried”. These submissions primarily flowed from the Electoral Commissioner’s submissions as to the supposed constructional error which was said to have resulted in a finding of a “radically different number of contraventions”. However, the Electoral Commissioner separately submitted that, in any event, the penalty was manifestly inadequate independent of the specific errors alleged as to the number and nature of contraventions, and relied upon the circumstances encapsulated in 5.1 to 5.9 of the Notice of Appeal. Those circumstances relevantly included that:

(a)    the Victorian Liberal Party was the notifying entity such that deterrence was required to be considered by reference to the conduct of a major political party – represented by its Registered Officer and State Director, Mr McQuestin – that had failed to comply with a law directed at protecting the integrity of Australia’s democratic process;

(b)    the non-compliant advertisements were published on the day of and in immediate days preceding the 2022 Federal Election, and both promoted a Liberal party candidate and attacked a Labor party candidate;

(c)    each of the advertisements were communicated to many thousands of people with more than 10,000 print copies distributed on 19 May 2022 and 20 May 2022 and more than 20,000 print copies distributed on 14 May 2022 and 21 May 2022;

(d)    as a result of widespread distribution, the advertisements were seen by a significant portion of electors in the relevant electoral division and in adjacent electorates;

(e)    despite being aware of the requirements of s 321D(5), Mr McQuestin approved what were plainly non-compliant advertisements;

(f)    the Victorian Liberal Party and Mr McQuestin did not have adequate compliance systems or processes in place such that three further non-compliant advertisements were published after a plainly non-compliant advertisement on 15 May 2022 and because no explanation was provided as to that non-compliance, it was to be inferred that they were prepared to run the risk of non-compliance;

(g)    the penalty was not to be borne by Mr McQuestin but was instead to be borne by the Victorian Liberal Party which had $20 million in receipts for the relevant financial year and had not suggested it had an incapacity to pay such that the penalties imposed by the primary judge could not be seen as carrying the necessary deterrent sting; and

(h)    despite the clear nature of the contraventions, Mr McQuestin’s cooperation was late and limited, no regret or remorse was displayed, and no evidence was provided as to the nature of the failures or of any corrective steps that had been taken.

79    In light of these matters, it was said that a “more general inference could be drawn” from penalties imposed by the primary judge which were said to be, in all the circumstances, “clearly too small to be an effective deterrent”. The Electoral Commissioner therefore submitted that the Full Court should impose an aggregate penalty of $150,000 in substitution of the penalty imposed by the primary judge.

80    In further submissions, the Electoral Commissioner contended that penalties totalling $150,000 were appropriate because:

Such penalties would send a proper deterrent message to ensure that major political parties have proper compliance arrangements so that there is no risk of them publishing non-compliant advertisements to tens of thousands of potential voters in the days leading up to an election. Penalties of that magnitude are clearly called for in the present circumstances where there is no real explanation for the wrongdoing, no evidence of improved compliance arrangements, no suggestion of any incapacity to pay, no contrition and only limited co-operation.

81    The Electoral Commissioner also submitted that Mr McQuestin knew the legislative requirements, was responsible for the advertisements, and led no evidence about an absence of awareness such that the characterisation of the breaches as not “deliberate” was not a mitigating factor. It was further submitted that the illegibility of the particulars was, from the point of view of a reader, equivalent to there being no particulars at all.

82    Following the Laming HC decision, the Electoral Commissioner repeated that the manifest inadequacy of the penalty imposed by the primary judge was readily established for the reasons and in the circumstances enumerated in paragraphs 5.1 to 5.8 of the Notice of Appeal (as set out above). Other than as to quantum, the Electoral Commissioner did not otherwise advance further submissions as to why the penalty imposed by the primary judge was manifestly inadequate but instead confirmed that he relied on the written and oral submissions previously made in respect of Ground 5.

83    As for quantum, the parties agreed that penalties totalling $73,280 are appropriate and the Electoral Commissioner submitted that the maximum penalty of $26,640 should be imposed in respect of both the Anti-Coker and Second Asher Advertisements and that a penalty of $20,000 should be imposed in respect of the First Asher Advertisement. This was said to be appropriate to achieve general and specific deterrence and consistent with the central holding in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450: citing Pattinson at [9]–[10], [49]–[50], [71]–[72] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

5.    CONSIDERATION

5.1    The principles applicable to finding manifest inadequacy

84    At the level of general principle, it is not enough, when assessing the exercise of discretion by a primary judge, that the judges composing an appellate court consider that they would have taken a different course if they had been in the position of the primary judge: House v R [1936] HCA 40; 55 CLR 499 at 504–505 (Dixon, Evatt and McTiernan JJ); see also Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at [50]. The same principle applies in the exercise of a power that is evaluative in nature.

85    In an appeal against a penalty on the ground of manifest inadequacy, the second of two errors described in House v R is relevant: see Australian Competition and Consumer Commission v Employsure Pty Ltd [2023] FCAFC 5; 407 ALR 302 at [32]-[33] (Rares, Stewart and Abraham JJ). That type of error was expressed by Dixon, Evatt and McTiernan JJ in House v R (at 505) as follows:

It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

86    In considering whether such an error has occurred, the following principles apply:

(a)    the appellant must demonstrate that the penalty is such that there was a misapplication of principle, although when and how the error occurred is not apparent from the judge’s reasons: Employsure at [37] citing Wong v R [2001] HCA 64; 207 CLR 584 at [58];

(b)    error may be inferred from a result that cannot have been arrived at without some kind of operative error: Reckitt Benckiser at [52];

(c)    for error to be inferred, the result must be one which was not open on the evidence or facts as found or agreed: Reckitt Benckiser at [52];

(d)    a finding of manifest inadequacy can be supported by reference to specific errors: Reckitt Benckiser at [56];

(e)    even if a specific error is not established, it may help to explain the overall result said to be erroneous: Reckitt Benckiser at [56]; Employsure at [38]; and

(f)    even if a specific error is established, it does not inexorably flow that the penalty was manifestly inadequate: Employsure at [39].

87    Assessing whether a penalty is “manifestly inadequate” requires consideration of what penalty is appropriate to achieve the principal, if not sole, object of civil penalties, being deterrence: Reckitt Benckiser at [57]; see generally Pattinson at [15]–[19]. As explained by the High Court in Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 at [66], a civil penalty “must be fixed with a view to ensuring that the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business”. The Court must therefore determine what penalty is “appropriate” in the particular circumstances of a given case: Pattinson at [19].

88    In assessing whether a penalty is appropriate, the following principles apply:

(a)    a penalty of appropriate deterrent value may be guided by the list of factors identified by French J in CSR (the “French Factors”), however these considerations are not to be treated as a “rigid catalogue of matters for attention” as if a legal checklist: Pattinson at [19] citing Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 at [91] (Buchanan J);

(b)    the maximum penalty prescribed by statute, although important, is but one yardstick that ordinarily must be applied when considering the quantum of a civil penalty but must not be applied mechanically: Pattinson at [53] affirming Reckitt Benckiser at [155]–[156] (citing Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]);

(c)    the statutory maximum does not implicitly require that contraventions be graded on a scale of increasing objective seriousness with the maximum reserved exclusively for the worst category of contravening conduct, which tends to focus on desert rather than deterrence: Pattinson at [49], [51];

(d)    considerations of deterrence and the protection of the public interest justify the imposition of the maximum penalty where it appears that no lesser penalty will be an effective deterrent against similar contraventions: Pattinson at [50]; and

(e)    there must ordinarily be some reasonable relationship between the theoretical maximum and the final penalty imposed, and the relationship of reasonableness may be established by reference to the circumstances of the contravenor and the circumstances of the conduct involved in the contravention insofar as those circumstances provide insight into the extent of the need for deterrence: Pattinson at [55] affirming Reckitt Benckiser at [156].

5.2    No error established

89    We are not satisfied that the penalty imposed by the primary judge in respect of each contravention, or the total quantum of the penalties imposed, was manifestly inadequate.

90    An appropriate starting position is to observe that the theoretical maximum penalty for a single contravention at the relevant time was $26,640 and the theoretical maximum penalty for three penalties was $79,920.

91    The primary judge imposed an aggregate penalty of $40,000 which is approximately 50% of the theoretical maximum for three contraventions. For the first contravention, the penalty imposed was 37.5% of the theoretical maximum. For the second and third contraventions, the penalties imposed were 56% of the theoretical maximum.

92    The parties’ position is that the appropriate aggregate penalty is $73,280, which is approximately 92% of the theoretical maximum for three contraventions. For the first contravention, the penalty sought is 75% of the theoretical maximum. For each of the second and third contraventions, the maximum penalty (100%) is sought.

93    The effect of the parties’ position was that the circumstances of the contravention warranted a total penalty near to the maximum, including the imposition of the maximum penalty for two of the contraventions. As stated in Pattinson at [50], the maximum penalty is not “only to be imposed in respect of contravening conduct of the most serious kind”. As was further explained there:

Considerations of deterrence, and the protection of the public interest, justify the imposition of the maximum penalty where it is apparent that no lesser penalty will be an effective deterrent against further contraventions of a like kind. Where a contravention is an example of adherence to a strategy of choosing to pay a penalty in preference to obeying the law, the court may reasonably fix a penalty at the maximum set by statute with a view to making continued adherence to that strategy in the ongoing conduct of the contravenor’s affairs as unattractive as it is open to the court reasonably to do.

(Emphasis added.)

94    Although the plurality in Pattinson was not intending to be exhaustive as to the circumstances in which the maximum penalty may be imposed, we do not regard the circumstances here as giving rise to considerations of deterrence and the protection of the public interest as justifying the imposition of the maximum, or near to the maximum, penalty in respect of each contravention for the reasons set out below.

95    The maximum penalty of $26,640 may be regarded as modest in relative terms to maximum penalties imposed under other Commonwealth regulatory regimes. It may be that the quantum of the maximum penalty here bears no relationship to the expenditure that major political parties may be expected to, and do, outlay in the running of a federal election campaign. For example, the agreed fact was that the Geelong Advertiser charged the Victorian Liberal Party an amount of $14,783.49 for the publication of the Contravening Advertisements. Nevertheless, Parliament has enacted the maximum penalty that it has.

96    The maximum penalty remains a useful yardstick, but it is no more than that: Pattinson at [53]. As the plurality pointed out in Pattinson at [55], “…the maximum penalty does not constrain the exercise of the discretion…beyond requiring ‘some reasonable relationship between the theoretical maximum and the final penalty imposed’”. As further explained at [55]:

This relationship of “reasonableness” may be established by reference to the circumstances of the contravenor as well as by the circumstances of the conduct involved in the contravention. That is so because either set of circumstances may have a bearing upon the extent of the need for deterrence in the penalty to be imposed. And these categories of circumstances may overlap.

97    Having regard to the purpose of a civil penalty being “primarily, if not, if not solely, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act” (Pattinson at [9]), we accept that the circumstances of the contraventions here were objectively serious and justified the imposition of a substantial penalty for each contravention. As Rangiah J observed in the Laming First Instance Decision at [244]:

Section 321D(5) fulfils an important public role in strengthening Australia’s system of representative democracy by requiring those communicating electoral matter to identify themselves. This allows voters to critically assess the credibility of information when forming political judgments and electing their representatives.

98    The holding of federal elections subject to the rule of law is essential to representative democracy. In contemporary federal election cycles, there has been an increase in the means, mediums and sources from which information is available about candidates, as well as the volume of such information and the frequency with which it is communicated. Section 321D(5) plays an important role in ensuring that where such communications are authorised by a registered political party, electors are made aware of that fact and the particulars associated with it. That is especially the case where the communications are supportive or critical of a candidate (as was the case with the Contravening Advertisements). As is made plain in s 321C, the objects served by s 321D(5) (together with other provisions in Part XXA of the Electoral Act) is to ensure “the transparency of the electoral system, by allowing voters to know who is communicating electoral matter”, as well as accountability and traceability. These provisions seek to ensure that an elector knows that information supportive or critical of a candidate is being communicated by a registered political party.

99    It follows from the obligations imposed by Part XXA of the Electoral Act that registered political parties need to ensure that critical information is conveyed when relevant political communications are made during the conduct of a federal election. It may be expected that a major political party such as the Victorian Liberal Party would have systems in place to ensure compliance with these important obligations.

100    Having regard to these matters, the contraventions here were serious in that the contravening conduct disclosed that a major political party, the Victorian Liberal Party, failed to ensure that critical information was disclosed in political advertisements that were supportive of its candidate, Ms Asher, and critical of an opposing candidate, Ms Coker. That conduct was also objectively serious in that the relevant information was to be communicated in a regional newspaper with a wide circulation and expected to be read by voters in that regional electorate. The primary judge had regard to these matters (as set out above).

101    But other factors were also relevant to an assessment of the circumstances of both the contravention and the contravenor. These were factors that were relevant to the primary judge’s assessment as to the appropriate penalties to be imposed, and, in our view, they were significant factors to take into account.

102    First, the unchallenged finding is that the contraventions were isolated incidents across an extensive electoral advertisement programme.

103    Second, a further unchallenged finding is that contraventions were limited, having occurred on three occasions over a period of only one week.

104    Third, there was no evidence that the contraventions were deliberate and there was no challenge to the primary judge’s finding to that effect.

105    Fourth, the primary judge made an unchallenged finding that there was no evidence that any of the problems with the notification of the required particulars were brought to Mr McQuestin’s attention, or that he was aware of such issues during the period of the contraventions.

106    Fifth, there is also no challenge to the primary judge’s finding that the Contravening Advertisements contained deficient particulars, not the absence of particulars.

107    Sixth, it followed that this was not a case where no steps were taken to comply with s 321D(5) of the Electoral Act. Again, there is no challenge to the primary judge’s finding to that effect.

108    Seventh, the Contravening Advertisements were published in the final days of the election campaign when it might be expected that transparency and accountability were crucial, and there was a failure in the systems and processes of the Victorian Liberal Party to ensure compliance with the Electoral Act.

109    Eighth, there is no challenge to the finding that there was no benefit as such derived from the contraventions.

110    Ninth, there was no history of Mr McQuestin having been involved in past contraventions. To this, it may be added that the Full Court was taken to no indication that the Victorian Liberal Party itself had engaged in any prior relevant contraventions of the Electoral Act.

111    Finally, the size of the Victorian Liberal Party called for a penalty to ensure that there was not a financial incentive not to comply with the Electoral Act.

112    Taking all of these matters into account, whilst we consider that the penalties imposed by the primary judge were at the lower end of what we would likely have imposed as an appropriate penalty, we do not consider the penalties so imposed to have been manifestly inadequate. We are simply not in a position where we can discern or infer that there was a misapplication of principle or outcome by the primary judge even if we are unable to point to how such an error may have come about.

113    Accordingly, we would dismiss the appeal. We would make no order as to costs given that the developments in the disposition of the appeal have not vindicated either party’s ultimate position.

Associate:    

Dated:    16 December 2025