Federal Court of Australia

Electoral Commissioner of the Australian Electoral Commission v Futter [2021] FCA 876

ORDERS

THE COURT DECLARES THAT:

1.    The respondent failed to make the disclosures by 2 September 2019 required by s 304 of the Commonwealth Electoral Act 1918 (Cth) and thereby contravened s 304 of the Electoral Act.

2.    The respondent failed to make the disclosures by 2 September 2019 required by s 309 of the Electoral Act and thereby contravened s 309 of the Electoral Act.

THE COURT ORDERS THAT:

3.    Within 30 days of the date of service of this order upon him, the respondent pay to the Commonwealth of Australia, pursuant to s 82(3) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth), the following pecuniary penalties totalling $12,600, which are hereby impressed upon him in respect of the declared contraventions:

(a)    in respect of his contravention of s 304 of the Electoral Act - $6,300; and

(b)    in respect of his contravention of s 309 of the Electoral Act - $6,300.

4.    Payment of the said penalties may be made into such official bank account as is nominated in writing by the applicant or, failing such nomination within 7 days of a written request in that regard by or on behalf of the respondent, as directed by the Court and the receipt by the Commonwealth of Australia (or of the applicant on its behalf) of cleared funds into any such bank account so nominated or directed shall be sufficient discharge of the respondent’s liability to pay the penalties imposed by this order. A certificate under the hand of a proper officer of the Commonwealth of Australia, or as the case may be, of the applicant, certifying to such receipt of funds is to be furnished to the respondent upon its written request. A certificate so furnished is prima facie evidence of the receipt of the penalties and of the related discharge of the obligation to pay them.

5.    The respondent pay the applicant’s costs of and incidental to the proceeding, as agreed or taxed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1    By an amended originating application filed with leave on 17 March 2021, the applicant (the Electoral Commissioner of the Australian Electoral Commission) seeks declarations that Mr Barry John Futter has contravened ss 304 and 309 of the Commonwealth Electoral Act 1918 (Cth) and an order that Mr Futter pay to the Commonwealth civil penalties in the amount of $12,600, as well its costs of, and incidental to, this proceeding.

2    As will shortly emerge, Mr Futter has not participated in the proceeding. He failed to attend any case management hearing or the final hearing of the matter on 29 July 2021 nor did he file any material in the proceeding.

Summary of background facts

3    I am satisfied that the following facts are established by the affidavits and documentary material filed by the Electoral Commissioner. The affidavits comprise:

(a)    an affidavit affirmed by Valeria Feltrin on 30 November 2020;

(b)    an affidavit sworn by Vanessa Betland on 4 January 2021;

(c)    an affidavit affirmed by Paul Howard Massing on 11 March 2021;

(d)    a second affidavit affirmed by Valeria Feltrin on 26 March 2021;

(e)    a second affidavit sworn by Vanessa Betland on 12 April 2021;

(f)    a second affidavit affirmed by Paul Howard Massing on 15 April 2021;

(g)    an affidavit affirmed by Caitlyn Georgeson on 4 June 2021;

(h)    a third affidavit affirmed by Paul Howard Massing on 19 July 2021;

(i)    an affidavit affirmed by Eloise Margaret Grace Crompton on 19 July 2021;

(j)    a fourth affidavit affirmed by Paul Howard Massing affirmed on 27 July 2021;

(k)    a second affidavit affirmed by Eloise Margaret Grace Crompton on 28 July 2021; and

(l)    a third affidavit affirmed by Valeria Feltrin on 20 July 2021.

4    On 11 April 2019, the Governor-General issued writs for the election of Members of the House of Representatives of the Parliament of the Commonwealth of Australia. The polling date was fixed as 18 May 2019.

5    On 20 April 2019, Mr Futter completed a nomination as a candidate in the election, in the electoral division of Newcastle in the House of Representatives. Mr Futter was endorsed by The Great Australian Party. The election took place on 18 May 2019, but Mr Futter was not elected.

6    Mr Futter was required by ss 304 and 309 of the Electoral Act to furnish to the Electoral Commissioner, by 2 September 2019, a return setting out the value of gifts and discretionary benefits received, and electoral expenses incurred, by him (Candidate Return).

7    On 5 June 2019, 19 June 2019 and 23 August 2019, letters were sent to Mr Futter in which his obligation to lodge a Candidate Return with the Australian Electoral Commission (AEC) by 2 September 2019 was outlined and instructions on how to lodge a Candidate Return were given. No Candidate Return was lodged by or in relation to Mr Futter on or before 2 September 2019. On 17 September 2019, 28 January 2020, 14 February 2020, 7 July 2020 and 14 August 2020, letters and emails were sent to Mr Futter in which his failure to lodge a Candidate Return was raised, as well as the prospect of seeking a civil penalty order arising from his non-compliance with ss 304 and 309 of the Electoral Act. On 17 April 2020 and 8 May 2020, email correspondence was also sent to Ms Ioanna Culleton, Party Agent of The Great Australian Party, in order to seek her assistance to make contact with Mr Futter. Attempts were also made to contact Mr Futter by telephone on 28 January 2020, 14 February 2020, 29 May 2020 and 7 July 2020. The Electoral Commissioner’s solicitor has unsuccessfully attempted to communicate with Mr Futter several times while this proceeding has been on foot. As at 20 July2021, Mr Futter still had not lodged a Candidate Return with the Electoral Commissioner.

Some procedural matters

8    The proceeding was commenced by way of an originating application filed on 7 December 2020. The evidence establishes that, on 21 December 2020, Mr Futter was personally served (at 97 Hunter Street, Newcastle) with the originating application, a supporting affidavit, a letter from the Electoral Commissioner’s solicitors and correspondence from O’Bryan J’s Chambers. Case management hearings were held by O’Bryan J on 12 February 2021 and on 11 March 2021. Mr Futter failed to appear at either hearing. On 7 April 2021, I made an order listing the matter for hearing for half a day commencing at 10:15 am on 29 July 2021 by Microsoft Teams and ordered the Electoral Commissioner to serve a copy of the order on Mr Futter by registered post at 97 Hunter Street, Newcastle NSW 2300. Since the 11 March 2021 case management hearing, neither the Electoral Commissioner nor his solicitors have received any communications from Mr Futter in relation to the proceeding, notwithstanding numerous attempts to contact him by telephone. Mr Futter has not filed any documents in the proceeding, including a defence or any affidavits. Notwithstanding service of various documents on him, it appears that he has chosen not to participate in, or defend, the proceeding.

9    On 7 July 2021, the Registry sent a letter by express post to Mr Futter at 97 Hunter Street, Newcastle which reminded him of the hearing listed for 29 July 2021. The letter noted that he had taken no active role in the proceeding notwithstanding that he had been personally served with the originating application and other relevant documentation. He was asked to indicate by email whether he intended to appear at the hearing. He was informed that if he did not attend the matter could proceed in his absence. The Registry received no reply to that letter.

Relevant statutory provisions

10    The proceeding relates to two provisions in the Electoral Act which impose duties of post-election disclosure on candidates at a federal election. The first obligation,which is in s 304(2), relates to an obligation to disclose gifts. The second obligation, which is imposed by s 309(2), relates to disclosure of electoral expenditure. Sub-section 304(2) provides:

304 Disclosure of gifts

(2)    The agent of each person (including a member of a group) who was a candidate in an election or by-election shall, within 15 weeks after the polling day in the election, furnish to the Electoral Commission a return, in an approved form and in accordance with this section, setting out the total amount or value of all gifts, the number of persons who made gifts, and the relevant details of each gift, received by the person while the person was a candidate in the election or by-election.

Civil penalty:

The higher of the following:

(a)    60 penalty units;

(b)    if there is sufficient evidence for the court to determine the amount or value, or an estimate of the amount or value, of gifts not disclosed--3 times that amount or value.

…

11    “Gift” is relevantly defined as “any disposition of property made by a person to another person, being a disposition made without consideration in money or money’s worth or with inadequate consideration, and includes the provision of a service (other than volunteer labour) for no consideration or for inadequate consideration” (see s 287(1)). The “relevant details” of each gift is a reference to the amount or value of the gift, the date on which it was given, and the name and address of the person who made it (s 304(4)). Sub-sections 307(1) and (2) make plain that the disclosure obligation under s 304(2) applies even where no gift has been received. Instead, the candidate must lodge a return which includes a statement to the effect that no gifts of a kind required to be disclosed were received.

12    Section 309(2) of the Act, which relates to electoral expenditure, relavently provides:

309 Returns of electoral expenditure

…

(2)    The agent of each person who was a candidate in an election (not being a member of a group) shall, before the expiration of 15 weeks after the polling day in the election, furnish to the Electoral Commission a return, in an approved form and in accordance with this section, setting out details of all electoral expenditure in relation to the election incurred by or with the authority of the candidate.

Civil penalty:

The higher of the following:

(a)    60 penalty units;

(b)    if there is sufficient evidence for the court to determine the amount, or an estimate of the amount, of electoral expenditure not disclosed--3 times that amount.

…

13    Where no electoral expenditure has been incurred, the candidate is nevertheless required to lodge a return which includes a statement that no electoral expenditure was incurred (see s 313 of the Act).

14    Mr Futter’s obligation to furnish a return continues until it is done, even though the 15-week period has expired. (See s 93(1) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act)).

15    Sub-sections 304(2) and 309(2) are civil penalty provisions. Each civil penalty provision is enforceable under Pt 4 of the Regulatory Powers Act and the Electoral Commissioner is an authorised applicant (see s 384(1) and s 384(2)(a) of the Electoral Act). This Court is a “relevant court” for Pt 4 of the Regulatory Powers Act (see s 384A(2)(c) of the Electoral Act and s 81 of the Regulatory Powers Act). The present application is brought pursuant to s 82(1) of the Regulatory Powers Act and, if the Court is satisfied that Mr Futter has contravened ss 304(2) and/or 309(2), the Court may order him to pay the Commonwealth such pecuniary penalty as the Court determines to be appropriate (see s 82(3) of the Regulatory Powers Act and the helpful discussion by Logan J of these provisions in Electoral Commissioner of Australian Electoral Commission v Wharton (No 3) [2021] FCA 742).

Mr Futter’s contraventions

16    Mr Futter did not appoint a person to be his agent in relation to the election, so he was taken to be his own agent (see ss 289(1) ad (2)). The obligations in ss 304(2) and 309(2) are thus obligations imposed on him. As explained above, Mr Futter was a candidate in the 18 May 2019 election for the House of Representatives in the electoral division of Newcastle. The “polling day” was 18 May 2019, such that the obligations imposed by ss 304(2) and 309(2) were required to be performed by 2 September 2019 (i.e. 15 weeks after 18 May 2019).

17    Mr Futter was required to furnish a return to the Electoral Commissioner in an “approved form”. That was to be done by completing a written form that was published on the AEC’s website (and then sent to the AEC) or by preparing and lodging an electronic form via an online portal on the AEC’s website. (A person can provide details pertaining to ss 304(2), 309(2) and 309(4) on the one form.).

18    As noted, Mr Futter has, to date, failed to furnish to the AEC a return setting out:

(a)    the total amount or value of all gifts, the number of persons who made the gifts, and the relevant details of each gift, received by Mr Futter while he was a candidate in the election (s 304(2)); and/or

(b)    details of all electoral expenditure in relation to the election incurred by or with the authority of Mr Futter (s309(2)); and/or

(c)    details of any discretionary benefits received by, or on behalf of, Mr Futter from the Commonwealth, a State or a Territory during the 12 months before polling day (s 309(4)).

19    As noted above, even if Mr Futter did not receive any gifts requiring disclosure or did not incur any electoral expenditure, he was nonetheless still required to furnish a return which included a statement to that effect. However, he has not at any time furnished a return to the AEC in relation to the 2019 election.

20    For these reasons, I find that Mr Futter has contravened both ss 304(2) and 309(2) of the Act. In reaching this view I have applied s 140 of the Evidence Act 1995 (Cth) and have had regard to the gravity of the allegations made against Mr Futter (see Wharton (No 3) at [23] per Logan J).

21    I consider this to be an appropriate case to make the declarations sought by the Electoral Commissioner.

22    As to penalty, helpful guidance in assessing civil penalties in a case such as the present is provided by Logan J’s judgment in Wharton (No 3) at [28] ff. Relevant matters include the following:

(a)    Mr Futter’s contraventions have occurred notwithstanding the numerous occasions on which he was reminded by the Electoral Commissioner of his obligations under both ss 304 and 309.

(b)    In contrast with the position in Wharton (No 3), Mr Futter has taken no active step in the proceeding, nor sought to explain his conduct.

(c)    The evident purpose of ss 304 and 309 is to seek to address corrupt or unacceptable conduct in elections, which is aptly described as serving an “important public purpose in a democratic society”.

(d)    The purpose of civil penalties is that of deterrence in both an individual and a general sense.

(e)    Further guidance is provided by s 82(6) of the Regulatory Powers Act, which identifies the following particular matters (non-exhaustively) which the Court must take into account:

(a)    the nature and extent of the contravention; and

(b)    the nature and extent of any loss or damage suffered because of the contravention; and

(c)    the circumstances in which the contravention took place; and

(d)    whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct. 

(f)    There is no evidence of any previous finding that Mr Futter has engaged in any similar conduct.

(g)    I accept the Electoral Commissioner’s submission that Mr Futter’s contraventions do not involve the same conduct. Rather, as was the case in Wharton (No 3), the contraventions are separate and, although they involve similar conduct, that conduct cannot be described as the same conduct.

(h)    As Logan J observed in Wharton (No 3) at [38], even where the contraventions do not involve the same conduct, in determining penalty, it is relevant to take into account whether the contraventions are “substantially contemporaneous and connected” (referring to L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157 at 168 per Taylor, Menzies and Owen JJ). This highlights the importance of not over-penalising Mr Futter. This is a relevant matter in considering the totality of the penalty.

23    The Electoral Commissioner sought penalties in the amount of $6,300 for each contravention.

24    In the particular circumstances, and applying the matters set out in [22] above, I consider that those are appropriate penalties. Accordingly, I will order that Mr Futter pay an amount for $6,300 for each contravention.

25    As to the time within which that amount must be paid, I respectfully agree with, and adopt, what Logan J had to say in Wharton (No 3) at [42] and will order the civil penalties to be paid within 30 days.

26    Mr Futter should pay the Electoral Commissioner’s costs.

Associate:

Dated:    29 July 2021