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

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

Section 321D(5) of the Commonwealth Electoral Act 1918 (Cth) is contravened on each occasion that electoral matter is communicated to a person without the required particulars; thus, a breach occurs each time a post is viewed by a separate individual. The scope of penalty should reflect the number of communications proved, taking into account any indicated course of conduct and moderation for the circumstances established in evidence. The appeal is allowed, the cross-appeal is dismissed, declarations and penalties are adjusted accordingly.

Parties
Appellant/cross Respondent: Electoral Commissioner of the Australian Electoral Commission; Respondent/cross Appellant: Andrew Laming
Jurisdiction
Australia
Judgment Date
23 August 2024
Procedural Posture
Civil Appeal / Full Federal Court Judgment on Appeal and Cross Appeal
Outcome
Appeal allowed; cross-appeal and notice of contention dismissed; penalties and declarations adjusted.
Legal Topics
Authorisation of Electoral Matter, Pecuniary Penalties, Statutory Interpretation, Disclosure Obligations (elections), General and Specific Deterrence, Civil Penalty Regime
Administrative Law Constitutional Law Electoral Law Human Rights Authorisation of Electoral Matter Pecuniary Penalties Statutory Interpretation Disclosure Obligations (elections) +2 more

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Parties

Electoral Commissioner of the Australian Electoral Commission

Appellant/cross Respondent

Andrew Laming

Respondent/cross Appellant

Procedural Posture

Civil Appeal / Full Federal Court Judgment on Appeal and Cross Appeal

Legal Issues

  1. 1 Whether s 321D(5) of the Commonwealth Electoral Act 1918 (Cth) is contravened on each separate communication of electoral matter to a person or only once per act of publication
  2. 2 Proper construction of the obligation to include authorisation particulars with electoral matter under s 321D(5)
  3. 3 Appropriate penalty assessment for multiple breaches under the Electoral Act

Ratio Decidendi

Section 321D(5) of the Commonwealth Electoral Act 1918 (Cth) is contravened on each occasion that electoral matter is communicated to a person without the required particulars; thus, a breach occurs each time a post is viewed by a separate individual. The scope of penalty should reflect the number of communications proved, taking into account any indicated course of conduct and moderation for the circumstances established in evidence. The appeal is allowed, the cross-appeal is dismissed, declarations and penalties are adjusted accordingly.

Court Disposition

Appeal allowed; cross-appeal and notice of contention dismissed; penalties and declarations adjusted.

Orders

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