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

FEDERAL COURT OF AUSTRALIA

Electoral Commissioner of the Australian Electoral Commission v Laming [2024] FCAFC 109 Appeal from: Electoral Commissioner of the Australian Electoral Commission v Laming (No 2) [2023] FCA 917

File number: QUD 384 of 2023

Judgment of: LOGAN, PERRY AND MEAGHER JJ

Date of judgment: 23 August 2024

Catchwords: ELECTIONS – where the primary judge held that three posts on a Facebook page were electoral matter published in contravention of s 321D(5) of the Commonwealth Electoral Act 1918 (Cth) in that they failed to disclose the name and relevant town or city of the person publishing the posts – whether the primary judge erred in finding that the singular act of publication of a post which results in an electoral matter being communicated to more than one person constitutes a single breach of s 321D(5) of the Electoral Act, irrespective of how many times the post is in fact viewed – ordinary meaning of "communicated to a person" in s 321D(1) – object of Part XXA of the Electoral Act "to promote fee and informed voting at elections" Held: a singular act which results in an electoral matter being communicated to more than one person constitutes a breach of s 321D(5) on each occasion that the post is communicated to (relevantly viewed by) a person PECUNIARY PENALTIES – exercise afresh of the discretion to order a pecuniary penalty – where principal object of imposing a penalty for a contravention of s 321D of the Electoral Act is general and specific deterrence – consideration of the relevance of a costs burden in determining whether to impose a pecuniary penalty and, if so, the amount – no evidence before the primary judge or the Full Court of the respondent's financial circumstances Held: single penalty imposed, being $40,000 for 28 contraventions forming 3 courses of contravening conduct