Electoral Commissioner of Australian Electoral Commission v Wharton (No 3) [2021] FCA 742

Federal Court of Australia

Electoral Commissioner of Australian Electoral Commission v Wharton (No 3) [2021] FCA 742 File number: QUD 334 of 2020

Judgment of: LOGAN J

Date of judgment: 1 June 2021

Catchwords: ADMINISTRATIVE LAW – civil penalty proceedings brought pursuant to the Commonwealth Electoral Act 1918 (Cth) – where respondent was a candidate in a federal election – where respondent failed to make disclosures as required by s 304(2) and s 309(2) of the Electoral Act – whether contraventions could be considered to be the same conduct pursuant to s 84(2) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) – held that the conduct merited separate contraventions and penalties – whether the respondent ought to be penalised half of the maximum penalty – where the conduct was substantially contemporaneous and connected – held that a penalty at half the maximum would be to over-penalise the respondent – penalties imposed PRACTICE AND PROCEDURE – where respondent was not present for hearing and did not file a defence – whether allegations are taken to be admitted by r 16.07(2) of the Federal Court Rules 2011 (Cth) – where applicant filed affidavit evidence proving contraventions CONSTITUTIONAL LAW – where respondent claimed at case management hearing that the Electoral Act lacked competency as the respondent was an Aboriginal man – where Coe v Commonwealth of Australia (1979) 53 ALJR 403 applied – held that that the Electoral Act has lawful application to the respondent

Legislation: Constitution Commonwealth Electoral Act 1918 (Cth) ss 289, 302V, 304, 307, 307A, 309, 313, 384A Customs Act 1901 – 1960 (Cth) Evidence Act 1995 (Cth) s 140 Regulatory Powers (Standard Provisions) Act 2014 (Cth) ss 79, 81, 82, 83, 84, 85, 87 Trade Practices Act 1974 (Cth) s 76 Federal Court Rules 2011 (Cth) r 16.07, r 39.02 Electoral Act 1992 (Qld) ss 290, 291