Federal Court of Australia

Electoral Commissioner v Davis [2026] FCA 652

ORDERS

THE COURT DECLARES THAT:

1.    On 8 April 2025, the respondent engaged in a single contravention of s 321D(5) of the Commonwealth Electoral Act 1918 (Cth) by failing to ensure that the following particulars as required by item 3 of the table in s 321D(5) of the Electoral Act:

(a)    the respondent’s name; and

(b)    the respondent’s address,

were notified in the “Allegra Spender Exposed” pamphlet, 47,784 copies of which the respondent authorised and caused to be printed and distributed to residences and businesses in the Division of Wentworth during the 2025 Federal Election.

THE COURT ORDERS THAT:

2.    Within 30 days of the date of this order, the respondent pay to the Commonwealth of Australia a pecuniary penalty in the total sum of $30,000 in respect of the contravention of s 321D(5) of the Electoral Act identified in paragraph 1 above.

3.    Within 30 days of the date of this order, the respondent pay a contribution to the applicant’s costs in the amount of $15,000.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

PERRY J:

1.    INTRODUCTION

1    Mr Jarrod Davis, the respondent, is a resident of, and enrolled to vote in, the electoral Division of Wentworth in the Eastern suburbs of Sydney, NSW. Mr Davis compiled a 16-page pamphlet that opposed the re-election of the sitting member, Allegra Spender MP. In April 2025, the month preceding the 2025 federal election, Mr Davis approved the pamphlet.

2    The pamphlet included statements to the effect that “Allegra will form a coalition with Labor” and “A vote for Allegra Spender is a vote for another Labor Term and potentially the seat that will get them over the line.” The pamphlet stated that its purpose was to “expose” Ms Spender and “what she stands for”. It also contained statements that Ms Spender had “regularly misled her electorate on her positions with many of them being against the majority opinion of the people of Wentworth”. The pamphlet further stated it would outline Ms Spender’s “shortcomings” and ensure that “the people of Wentworth are informed of her true opinions”.

3    The pamphlet included a statement at the base of each page that it was “Produced by the people of Wentworth for the people of Wentworth.”

4    Mr Davis paid $17,564.58 to IVE – Distribution (within the IVE Group) to produce and distribute the pamphlet. IVE Group rendered this service on 15 April 2025 (the week leading up to pre-poll voting for the federal election) by distributing 47,784 copies of the pamphlet to residences and businesses in the Wentworth division.

5    The Electoral Commissioner commenced proceedings against Mr Davis, seeking a declaration that he had contravened s 321D(5) of the Commonwealth Electoral Act 1918 (Cth) and an order that Mr Davis pay a pecuniary penalty to the Commonwealth. Section 321D(5) of the Electoral Act relevantly provides that a pamphlet authorised by a disclosure entity who is a natural person is to include the name and address of that person on the pamphlet.

6    Mr Davis admits that, on or about 8 April 2025, he engaged in a single contravention of s 321D(5) of the Electoral Act in that he failed to ensure that the particulars required to be included in the pamphlet by s 321D(5) (his name and address) were notified in accordance with s 321D(7).

7    By their Joint Submissions on Liability and Relief, the parties join in seeking the following orders (the Agreed Orders):

(1)    a declaration under s 21 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) that on 8 April 2025, Mr Davis contravened s 321D(5) of the Electoral Act;

(2)    a pecuniary penalty in the sum of $30,000 (the Agreed Penalty); and

(3)    an order that Mr Davis pay a contribution to the Commissioner’s costs fixed in the sum of $15,000.

8    I note that the parties agree that the amount of costs which they have agreed is less than the Commissioner’s actual costs given their agreed resolution of the proceeding and the benefits of avoiding subsequent assessment processes.

9    In support of the Agreed Orders, the parties rely upon a joint Statement of Agreed Facts and Admissions for the purposes of s 191 of the Evidence Act 1995 (Cth) and their Joint Submissions.

10    Nonetheless, while the parties have reached agreement as to the terms of the final orders sought, it is ultimately for the Court to determine:

(1)    whether Mr Davis has contravened s 321D(5) of the Electoral Act;

(2)    the quantum of any pecuniary penalties; and

(3)    any order as to costs.

11    For the following reasons, I am satisfied that the contravention has been established, that it is appropriate to grant the declaratory relief sought by the parties, and that the Agreed Penalty is appropriate in all of the circumstances having regard to the primacy of general and specific deterrence in assessing penalty. I am also satisfied that the proposed order as to costs in the sum of $15,000 as a contribution to the Commissioner’s costs is appropriate for the reasons given by the parties in the Joint Submissions.

2.    LEGISLATIVE FRAMEWORK

12    Section 321D of the Electoral Act is contained in Part XXA (“Authorisation of electoral matter”) and was inserted by Sch 1 to the Electoral and Other Legislation Amendment Act 2017 (Cth). Section 321C(1) sets out the objects of Part XXA and provides that:

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;

(d)    the integrity of the electoral system, by ensuring that only those with a legitimate connection to Australia are able to influence Australian elections.

13    In Laming v Electoral Commissioner of the Australian Electoral Commission [2025] HCA 31; (2025) 424 ALR 359, Gageler CJ, Gleeson and Jagot JJ at [24] held that these objects “are of fundamental importance to the proper functioning of Australian democracy and the ‘vote of every elector is a matter of concern to the whole Commonwealth’”.

14    Section 321C(2) explains that Part XXA aims to achieve these objects by (relevantly):

(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;

…

15    Section 321D deals with the particulars which are required to be included in relation to “electoral matter” that is communicated to a person and, under s 321D(1), “applies in relation to electoral matter that is communicated to a person if”:

…

(b)    both of the following apply:

(i)    the matter forms part of a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card;

(ii)    the content of the matter was approved by a person (the notifying entity)…

16    Thus, the plurality in Laming at [33] held that s 321D(1):

is to be understood as involving a fact or circumstance that must exist for s 321D to apply. The required fact or circumstance, being that “electoral matter” is “communicated to a person”, involves proof of a past event of “electoral matter” being “communicated to a person”. In circumstances where “communicated” is not a defined term but takes its ordinary meaning (as the past participle of the regular verb “to communicate”), s 321D(1) is to be understood as requiring that the “electoral matter” was imparted, transmitted, given to, conveyed to, or expressed to a person. Once it is established, by applying s 321D(1) to the facts, that s 321D applies, s 321D(1) has no further function. Its function, of identifying when s 321D(5) may apply, is performed.

17    In other words, s 321D(1) performs a “gateway function”: Laming at [33].

18    Where s 321D(1) is met, s 321D(5) operates to impose an obligation on notifying entities to:

… 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.

19    Where the communication is, as here, a pamphlet authorised by a “disclosure entity” who is a natural person, item 3 of the table in s 321D(5) provides that the particulars required are the name and address of the person. These in turn include that the particulars be at the end of the communication: s 11(2), Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021 (Cth).

20    Importantly, s 321D(5) applies where the communication is in relation to an “electoral matter”. “Electoral matter” is 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.

…

(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.

21    Section 321B defines “address”, “authorises” and “disclosure entity” for the purposes of Part XXA as follows:

(1)    “Address” is defined, in respect of a natural person, as a “full street address and suburb or locality at which the person can be contacted”: s 321B(1) (sub-paragraph (a)).

(2)    With respect to the definition of “authorises”, a person “authorises the communication of electoral matter if:

(a)    …the content of the matter is approved before the matter is communicated—the person approves the content of the matter; or

(b)    otherwise—the person communicates the matter.”

(3)    A person is a “disclosure entity” at a particular time if the person is, relevantly, a “third party” within the meaning of Pt XX of the Act: s 321B(1) sub-paragraph (ab). Section 287(1) of Part XX provides that a person will be a “third party” during a financial year if the amount of “electoral expenditure” incurred by or with the authority of the person during the financial year is more than the “disclosure threshold”, and the person or entity is not required to be, and is not, registered as a “significant third party” under s 287F for that year.

(4)    As to the defined terms referred to in the definition of “third party”:

(a)    s 287AB defines “electoral expenditure” to mean “expenditure incurred for the dominant purpose of creating or communicating electoral matter”, subject to exceptions not presently relevant;

(b)    s 287(1), read with the indexation provision in s 321A, provides that the “disclosure threshold” for the 2024-2025 financial year is $16,900.

22    As the parties submit, in line with the objects of Part XXA, the requirement that a notifying entity ensure that the stipulated particulars are notified in accordance with s 321D(7):

is important for the promotion of free and informed voting at elections because it enhances: transparency and integrity in the federal electoral system by allowing voters to know who is communicating electoral matter; the accountability of those participating in public debate relating to electoral matter, by making those persons responsible for their communications; and the traceability of communications of electoral matter, thereby ensuring that obligations under Pt XXA of the Act can be enforced.

3.    APPROACH IN CASES WHERE RELIEF IS SOUGHT ON AN AGREED BASIS

23    The principles relating to the consideration of an order for a civil penalty where the parties have made joint submissions are well established and set out in Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 (Agreed Penalties Case). I recently summarised those principles in Minister for the Environment and Water v GE Grid Australia Pty Ltd [2025] FCA 1609 at [21]-[24] as follows:

In Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 ([Agreed Penalties Case]), French CJ, Kiefel, Bell, Nettle and Gordon JJ (with whose reasons Keane J agreed at [79]) approved the practice whereby the parties may file agreed penalty submissions, holding that:

46. … there is an important public policy involved in promoting predictability of outcome in civil penalty proceedings and … the practice of receiving and, if appropriate, accepting agreed penalty submissions increases the predictability of outcome for regulators and wrongdoers … such predictability of outcome encourages corporations to acknowledge contraventions, which, in turn, assists in avoiding lengthy and complex litigation and thus tends to free the courts to deal with other matters and free investigating officers to turn to other areas of investigation that await their attention.

Their Honours further observed at [57] that in civil, as opposed to criminal, proceedings “there is generally very considerable scope for the parties to agree on the facts and upon consequences. There is also very considerable scope for them to agree upon the appropriate remedy and for the court to be persuaded that it is an appropriate remedy” (emphasis in the original). More specifically, while acknowledging that there may be exceptions to the general rule, their Honours explained that:

58. … There is, however, no reason in principle or practice why civil penalty proceedings should be treated as an exception. Subject to the court being sufficiently persuaded of the accuracy of the parties’ agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and … highly desirable in practice for the court to accept the parties’ proposal and therefore impose the proposed penalty. To do so is no different in principle or practice from approving an infant’s compromise, a custody or property compromise, a group proceeding settlement or a scheme of arrangement.

(Emphasis in the original, citations omitted.)

In this regard, their Honours accepted at [59] the public interest in the imposition of civil penalties but considered that “[o]nce it is understood that civil penalties are not retributive, but like most other civil remedies essentially deterrent or compensatory and therefore protective, there is nothing odd or exceptionable about a court approving an agreed settlement of a civil proceeding which involves the public interest; provided of course that the court is persuaded that the settlement is appropriate.”

It follows, as the joint submissions contend, that:

In considering whether the Agreed 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” [citing Volkswagen Aktiengesellschaft v ACCC [2021] FCAFC 49; (2021) 284 FCR 24 at [127] (the Court)].

24    In short, as for example, Gordon J in Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 (ACCC v Coles) at [70]-[73] helpfully explained by way of a summary of the applicable approach:

… First, there is a well-recognised public interest in the settlement of cases under the Act …. Second, the orders proposed by agreement of the parties must be not contrary to the public interest and at least consistent with it….

Third, when deciding whether to make orders that are consented to by the parties, the Court must be satisfied that it has the power to make the orders proposed and that the orders are appropriate… Parties cannot by consent confer power to make orders that the Court otherwise lacks the power to make....

Fourth, once the Court is satisfied that orders are within power and appropriate, it should exercise a degree of restraint when scrutinising the proposed settlement terms, particularly where both parties are legally represented and able to understand and evaluate the desirability of the settlement…

Finally, in deciding whether agreed orders conform with legal principle, the Court is entitled to treat the consent of [the respondent] as an admission of all facts necessary or appropriate to the granting of the relief sought against it...

(Citations omitted.)

25    Finally, these principles are not confined to agreed submissions on pecuniary penalties but apply equally to agreement on other forms of relief, consistently with previous authority with respect to agreement on declaratory, injunctive and other relief in civil regulatory proceedings: see e.g. NW Frozen Foods Pty Ltd v Australian Competition & Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285; ACCC v Coles at [75] (Gordon J).

4.    THE CONTRAVENTIONS

26    The facts relevant to the question of liability are set out in the Statement of Agreed Facts and Admissions and conveniently summarised in the Joint Submissions.

27    First, with respect to the approval and distribution of the pamphlet, the parties are agreed that:

Mr Davis is a resident of, and enrolled to vote in, the electoral division of Wentworth in the eastern suburbs of Sydney … On 20 March 2025, Mr Davis made contact with IVE Group to arrange a print run and letter drop of pamphlets in the eastern suburbs of Sydney...

On 28 March 2025, a federal election was called, to be held on 3 May 2025…

With some minor professional editorial input, Mr Davis compiled the content of a pamphlet opposing the re-election of the sitting member for Wentworth, Allegra Spender MP. On 8 April 2025, Mr Davis approved the content of the pamphlet for printing and distribution… The pamphlet was to be distributed in the division of Wentworth… A map of the pamphlet distribution area is at Annexure B to the [Statement of Agreed Facts and Admissions].

The pamphlet … :

(a)    bore the title, on each page, “Allegra Spender Exposed”:

(b)    was 16 pages in length:

(c)    stated that its purpose was to “expose” Ms Spender and “what she stands for”, stated that Ms Spender had “regularly misled her electorate on her positions with many of them being against the majority opinion of the people of Wentworth”, and stated that it would outline “her shortcomings and ensure the people of Wentworth are informed of her true opinions”:

(d)    expressly opposed Ms Spender and voting for Ms Spender in relation to the 2025 federal election, including by statements to the effect that “Allegra will form a coalition with Labor”, and “A vote for Allegra Spender is a vote for another Labor Term and potentially the seat that will get them over the line”: and

(e)    stated at the bottom of each page that it was “Produced by the people of Wentworth for the people of Wentworth”.

The pamphlet as approved by Mr Davis did not contain the particulars required by s 321D(5) of the Act … namely Mr Davis’s name and address.

On or around 8 April 2025, Mr Davis paid IVE – Distribution (within the IVE Group) $17,564.58 for services, which were supplied in April 2025, for the dominant purpose of producing and distributing 47,784 copies of the pamphlet.

On 15 April 2025 (in the week leading up to pre-poll voting for the 2025 federal election), on Mr Davis’s instructions, the 47,784 copies of the pamphlet were distributed to residences and businesses in the division of Wentworth by IVE Group. At least some of the 47,784 copies of the pamphlet distributed in the Division of Wentworth were received and read by a person.

(Joint Submissions at [15]-[21] (cross-references omitted).)

28    The parties jointly submit, and I accept that, the facts set out above plainly establish that Mr Davis contravened s 321D(5) of the Act by failing to ensure that his name and address were notified at the end of the pamphlet. Specifically, as the parties correctly submit:

23.    Having regard to the various defined terms relevant to s 321D(5), the pamphlet approved by Mr Davis and distributed on his behalf was “electoral matter” within the meaning of s 4AA of the Act …, having been communicated to a person for the dominant purpose of influencing the way that electors voted in the 2025 House of Representatives Election for the division of Wentworth, including by opposing Ms Spender.

24.    Mr Davis was the “notifying entity” in respect of the pamphlet because he approved the content of the electoral matter.

25.    As a natural person who authorised the communication, Mr Davis was also a “disclosure entity” within the meaning of s 321B during the 2024-2025 financial year, including in April 2025, because by paying IVE – Distribution …, Mr Davis:

(a)    incurred “electoral expenditure” within the meaning of s 287AB in the 2024-2025 financial year, because he incurred expenditure for the dominant purpose of creating electoral matter;

(b)    incurred “electoral expenditure” in excess of the “disclosure threshold” (being $16,900 for the 2024-2025 financial year …, because he expended $17,564.58 in relation to the pamphlet; and

(c)    was therefore a “third party” within the meaning of s 287 of the Act during the 2024-2025 financial year.

26.    As the electoral matter was a pamphlet, and the content of the matter was approved by Mr Davis, s 321D(1)(b) was satisfied. Consequently, the requirements in s 321D(5) applied in respect of the pamphlet… Mr Davis, as the notifying entity, was accordingly obliged to ensure that the particulars specified in s 321D(5) were notified in accordance with the requirements determined under s 321D(7).

27.    As explained above, the required particulars were Mr Davis’s name and address: item 3 of the table in s 321D(5). By reason of s 11 of the Determination, those particulars were required to be at the end of the communication.

28.    Mr Davis accordingly admits that, by failing on or about 8 April 2025 to ensure that the pamphlet he approved to be produced and distributed by IVE Group contained his name and address at the end of the communication, Mr Davis contravened s 321D(5) of the Act.

(Joint Submissions at [23]-[28] (cross-references omitted).)

29    Finally, as the parties submit, Mr Davis’s conduct constituted a single convention of s 321D(2). Thus in Laming, the plurality held at [5] that s 321D(5) “is engaged by any failure to ensure that the required ‘particulars’ are notified in ‘electoral matter’ provided that the ‘electoral matter’ is communicated to one person and otherwise irrespective of the number of people to whom the ‘electoral matter’ is communicated”. In other words, their Honours held at [36] that:

On the terms of s 321D(5), it is the notifying entity’s failure to ensure that the particulars are notified as required which constitutes the contravention. Such a failure can only occur before an act of communication, but it is not an element of a contravention that “the communication” is “communicated”. Rather, the fact or circumstance of “electoral matter” having been “communicated” to a person must already have been established for any question of contravention of s 321D(5) to arise.

30    Thus, in Laming the appellant was held to have contravened s 321D(5) on three occasions when he posted electoral matter on a Facebook page, as opposed to the number of occasions on which those posts were viewed. Similarly, for example, in Electoral Commissioner v McQuestin (2025) 313 FCR 303, which was decided after the High Court’s decision in Laming, the Commissioner did not press a ground of appeal alleging that the primary judge erred in finding that there was a single contravention rather than two separate contraventions in respect of a newspaper advertisement the subject of a single act of approval which was printed on multiple days and distributed in thousands of newspapers.

5.    RELEVANT PRINCIPLES AS TO PENALTY

31    Section 321D(5) of the Electoral Act 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 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).

32    Pursuant to s 82(3) of the Regulatory Powers Act, if the Court is satisfied that a person has contravened a civil penalty provision, the Court may order the person to pay to the Commonwealth such pecuniary penalty for the contravention as the Court determines to be appropriate.

33    First, as with other civil penalty regimes, the principal, if not sole, objective of imposing a penalty for a contravention of s 321D of the Electoral Act is general and specific deterrence, and concepts of punishment, retribution and rehabilitation from the criminal law have no role to play: Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 at [15]-[16] and [31] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

34    In order to secure general deterrence, the penalty imposed must be sufficient to ensure that actors are deterred in the future from engaging in the proscribed conduct. Under many regulatory schemes, such as those to protect consumers, this means that a penalty of appropriate deterrent effect is one which will deter contraveners “from the cynical calculation involved in weighing up the risk of penalty against the profits to be made from contravention”: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 at [63] (Keane CJ, Finn and Gilmour JJ); see also, eg, ACCC v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 at [57], [148]-[153], [164], [176] (the Court). However, a contravention of the Electoral Act calls for a different approach to penalty compared to cases involving a contravention of consumer protection or industrial legislation. Specifically in Laming at [26]–[27], the plurality held that:

...[t]he concept that a civil penalty ... puts a “price on contravention which is sufficiently high to ensure that the penalty cannot be seen as the acceptable cost of doing business, but is rather seen as an economically irrational choice” makes sense in many contexts both commercial and protective, but does not resonate in the context of political communications in a political system which depends on free political communications and in which compliance is to be encouraged and non-compliance deterred, but not at any price as s 321C(3) makes clear.

Moreover, in the political context, the maximum amount of a penalty is not an effective gauge of the deterrent effect of the provision. The mere fact of a contravention of s 321D(5) being found by a court could be expected to have material reputational and other effects of potential significance to those subject to its terms.

35    Secondly, it follows from these principles that the various factors under s 82(6) of the Regulatory Powers Act fall to be considered in the context of setting a penalty of appropriate deterrent value. Section 82(6) provides that the Court must take into account “all relevant matters”, including:

(a)    the nature and extent of the contravention;

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

(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.

36    Other relevant factors may include those identified by French J (as his Honour then was) in Trade Practices Commission v CSR Ltd [1990] FCA 762, such as the deliberateness of the contravention, and any cooperation given to the regulator: Pattinson at [18] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ); McQuestin at [88(a)] (Charlesworth and Shariff JJ).

37    Thirdly, it also follows that “the penalty should not be greater than is necessary to achieve this object; severity beyond that would be oppression”: NW Frozen Foods at 293 (Burchett and Kiefel JJ). As six members of the High Court recently held in Pattinson at [10]:

… What is required is that there be “some reasonable relationship between the theoretical maximum and the final penalty imposed”. That relationship is established where the maximum penalty does not exceed what is reasonably necessary to achieve the purpose of s 546 [of the Fair Work Act 2009 (Cth) conferring power to impose civil pecuniary penalties]: the deterrence of future contraventions of a like kind by the contravenor and by others.

(Footnotes omitted.)

38    Thus, the High Court in Pattinson held that the penalties imposed by the primary judge were appropriate “because they were no more than might be considered to be reasonably necessary … to make the continuation of the CFMMEU’s non-compliance with the law, amply demonstrated by the history of its contraventions, too expensive to maintain” (at [9]) (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). However, as their Honours then proceeded to explain, there is no place for the notion that a civil penalty must be proportionate to the seriousness of the conduct comprising the contravention or that the maximum penalty should be reserved for the most serious examples of offending (at [10]; see also at [49]-[55]).

39    Fourthly, the process involves an “instinctive synthesis” of all the relevant factors, by which the Court must weigh each factor relevant to the penalty and reach a conclusion that the penalty is in the quantum which ought to be imposed: Australian Competition and Consumer Commission v Coles Supermarkets [2015] FCA 330; (2015) 327 ALR 540 at [6] (Allsop CJ) . As I explained in Australian Competition and Consumer Commission v Birubi Art Pty Ltd (in liq) (No 3) [2019] FCA 996 at [78] with respect to the ultimate assessment of the appropriate civil penalty:

… in common with criminal sentencing, the process of arriving at the appropriate civil penalty under the ACL (and its predecessor, the Trade Practices Act 1974 (Cth)) involves an intuitive or instinctive synthesis of all of the relevant factors rather than a sequential mathematical process: [Australian Competition and Consumer Commission v] Coles Supermarkets [[2015] FCA 330; (2015) 327 ALR 540] at [6] (Allsop CJ). This does not of course mean that all of the considerations which are relevant to criminal sentencing are also relevant to assessing an appropriate civil penalty. Rather it is the process itself which is the same. Instinctive synthesis in this sense was helpfully described by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 as meaning:

51.    … the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case” (at [51])

(See also by analogy Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 (Barbaro) at [34]-[35] (French CJ, Hayne, Kiefel and Bell JJ).)

40    In the fifth place, as I held in Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd [2019] FCA 797; (2019) 136 ACSR 603 at [59] with respect to the totality principle (applicable where, unlike the present case, more than one contravention has occurred):

… the Court must consider all of the contravening conduct and determine whether the total penalty for each offence aggregated together exceeds that which is proper for the entire contravening conduct involved (the totality principle): Mill v R (1988) 166 CLR 59 (Mill) at 63 (the Court) (by analogy). As such, the totality principle operates as a final check of the penalties to be imposed on the respondent, considered as a whole.

41    Finally, the Full Court has repeatedly emphasised that, although similar contraventions should incur similar penalties, the differing circumstances of individual cases mean that a penalty imposed in one case cannot dictate the penalty in a later case. As such, comparisons with previous penalties will rarely be helpful: see, eg, Singtel Optus v ACCC (2012) 287 ALR 249; [2012] FCAFC 20 at [60] (the Court); see also ACCC v Telstra Corporation Ltd (2010) 188 FCR 238; [2010] FCA 790 at [215] (Middleton J).

6.    IS THE PROPOSED PENALTY AN APPROPRIATE ONE?

42    The parties submit that a pecuniary penalty of $30,000 is appropriate to achieve the objects of general and specific deterrence. They summarised their submissions as to the appropriateness of the proposed penalty at [63] of the Joint Submissions as follows.

First, the proposed penalty reflects the seriousness of the contravening conduct. As already noted, Mr Davis’s failure to notify the particulars required by s 321D(5) in the pamphlet, with 47,784 copies having been distributed in the division of Wentworth and at least some of those copies being received and read by a person, had the potential to harm the public by potentially harming free and informed voting at the 2025 federal election.

Secondly, the proposed penalty is necessary and sufficient to remind other notifying entities of the importance of ensuring that electoral matter complies with the notification requirements in s 321D of the Electoral Act. Mr Davis does not rely on his financial position to mitigate the penalty…

Thirdly, the proposed penalty is of a sufficient quantum having regard to the fact that Mr Davis’s conduct was undertaken in his personal capacity, and not connected with any political party, and gives due regard to the degree of cooperation and contrition which he has demonstrated.

43    As stated above, the statutory maximum penalty for a contravention of s 321D(5) is 120 penalty units: see also Regulatory Powers Act, s 82(5)(b). At the relevant time, the value of a penalty unit prescribed by s 4AA(1) of the Crimes Act was $330. As such, the maximum penalty for the contravention in this case, as the parties jointly submit, is $39,600.

44    I first turn to the matters to which I must have regard under s 82(6) of the Regulatory Powers Act.

45    First, as to s 82(6)(a) of the Regulatory Powers Act (i.e., the nature and extent of the contravention), the conduct amounted to a single contravention on one day in April 2025. As the parties submit, it is relevant that 47,784 copies of the pamphlet were distributed as it may be inferred that at least some of the pamphlets were received and read by voters in Ms Spender’s electorate: see McQuestin at [100] (Charlesworth and Shariff JJ). The significance of the contravention, as the parties contend, must be understood in light of the importance of s 321D to the promotion of free and informed voting at elections. The importance attributed to identification of the authorising person is illustrated by this case in that the pamphlet saw fit to state at the end of each page that it was “Produced by the people of Wentworth for the people of Wentworth”. In other words, this suggests that Mr Davis appreciated the relevance of identifying those person(s) who produced the pamphlet in question to those receiving the pamphlet.

46    Secondly, as to s 82(6)(b) of the Regulatory Powers Act (i.e., loss or damage suffered by reason of the contravention), I accept the parties’ submission that it does not necessarily follow from the fact that Ms Spender was ultimately re-elected in the 2025 federal election that there was no loss or damage caused by Mr Davis’s conduct. Rather, as the parties contend, the potential harm lies in the fact that readers of the pamphlet were denied the ability to properly assess information contained in the pamphlet by reference to its author. In that regard, Mr Davis properly admits that his conduct had the potential to cause harm to the public in that he did not comply with the rules for the transparent, accountable and traceable communication of electoral matter. I have already explained the importance of adhering to, and enforcing, those rules in the Australian democratic process.

47    Thirdly, I have already explained the circumstances of the contravention which must also be taken into account under s 82(6)(c) of the Regulatory Powers Act. Particular features of the contravening conduct include that:

(1)    I accept that, at the time of instructing IVE Group to undertake the printing and distribution of the pamphlet, Mr Davis’s engagement of IVE Group was a “one off” event;

(2)    Mr Davis caused the publication of the pamphlet to be undertaken in his personal capacity;

(3)    Mr Davis is not a member of any political party; and

(4)    Mr Davis was nonetheless prepared to spend $17,564.58 on the printing and distribution of the pamphlet, which, as the parties contend, demonstrates the value afforded by Mr Davis to engaging in that exercise.

48    Fourthly, as to s 82(6)(d) of the Regulatory Powers Act Mr Davis has not previously been found by any court to have engaged in any similar conduct. Nor did he derive any profit from his contravening conduct.

49    Fifthly, it is significant that Mr Davis has cooperated with the Commissioner who is the regulatory authority charged with enforcement of the Electoral Act in relation to his conduct and, as a result of Mr Davis’s cooperation, the public resources that the Commissioner would otherwise have expended on a contested trial can be utilised by the Commissioner in pursuing other matters. In particular, I note the following matters relevant to Mr Davis’s cooperation which were rightly emphasised by the parties in their joint submissions:

(a)    After being alerted by IVE Group on the evening of Wednesday 16 April 2025 that it had received a s 321F notice from the Australian Electoral Commission (AEC) regarding the pamphlets, which advised that the pamphlets did not contain the required authorisation particulars, Mr Davis responded to IVE Group, “Just no more distro for now”.

(b)    At 7pm on Thursday 17 April 2025, the AEC sought an undertaking from Mr Davis not to further distribute the pamphlets or other unauthorised electoral matter during the federal election period. Mr Davis provided that undertaking on Tuesday 22 April 2025, after the Easter long weekend.

(c)    The following day, 23 April 2025, Mr Davis stated to the Commissioner that he had denied requests from individuals to cause further copies of the pamphlet to be printed. He also provided his personal contact details to the Commissioner and stated that the pamphlet had been printed without his details by reason of oversight.

(d)    Mr Davis provided some of the information and documents sought by the AEC in response to s 321F notices which were issued to him on 17 April and 19 May 2025.

(e)    Mr Davis admits his contravening conduct and cooperated with the Commissioner from the earliest opportunity following the commencement of the proceeding to seek to reach agreement on a [Statement of Agreed Facts and Admissions]. He has subsequently cooperated to agree a detailed [Statement of Agreed Facts and Admissions] setting out the underlying facts and admissions going to his liability and appropriate penalty.

(f)    Agreement on the [Statement of Agreed Facts and Admissions] was delayed in part because Mr Davis failed to lodge his third party disclosure return for the 2024-2025 financial year regarding his expenditure on electoral matter, as required by s 314AEB of the Act. The return was required to be lodged on 17 November 2025 but was not lodged by Mr Davis until 28 January 2026.

(g)    Mr Davis has cooperated with the Commissioner further in agreeing to a proposed declaration and orders sought at Annexure D to the [Statement of Agreed Facts and Admissions].

(Joint submissions at [58].)

50    I am also satisfied that Mr Davis has demonstrated contrition by acknowledging that he should have included the required particulars on the pamphlet but failed to do so, and through the extent of his cooperation. These matters reflect a level of contrition which the parties rightly submit ought to be taken into account in determining the appropriate penalty.

51    In the sixth place, as I have earlier said, comparisons with penalties imposed in previous cases are rarely helpful, especially where, as here, there has been little judicial consideration of penalties to be imposed for contraventions of s 321D(5). However, the parties drew my attention to the Full Court’s decision in McQuestin which, by majority upheld the primary judge’s aggregate penalty of $40,000 in relation to three contraventions of s 321D(5). The fact that the majority considered this penalty to be “at the lower end” of what the majority would likely have imposed provides some comfort that the proposed penalty in this case is proper and not excessive: McQuestin at [112].

52    Finally, weighing each of the factors set out above, I consider that the proposed penalty of $30,000 is within the appropriate range of penalties for the single contravention of s 321D(5) of the Electoral Act by Mr Davis and do not consider that it exceeds that which is proper for the contravening conduct.

7.    DECLARATORY RELIEF

53    The parties jointly submit that it is also appropriate to make a declaration that Mr Davis engaged in a single contravention of s 321D(5) of the Electoral Act by failing to ensure that Mr Davis’s name and address were notified in the pamphlet.

54    Having regard to the admissions made by Mr Davis and the matters addressed in the Statement of Agreed Facts and Admissions, I am satisfied that it is appropriate to grant declaratory relief pursuant to s 21 of the FCA Act in the exercise of discretion, and that the terms of the declaration set out in the Agreed Orders as set out in Annexure D of the Statement of Agreed Facts and Admissions are expressed with sufficient precision. In so doing, I accept the parties’ joint submission that the making of the proposed declaration, which identifies the conduct constituting the contravention, is appropriate to record the Court’s disapproval of the contravening conduct, to assist in clarifying the law, and to deter other persons from contravening s 321D(5) of the Electoral Act: ASIC v Axis International Management Pty Ltd (2009) 178 FCR 485; [2009] FCA 852 at [26]-[43] (Gilmour J).

Associate:

Dated:    29 May 2026