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

Federal Court of Australia

Electoral Commissioner of the Australian Electoral Commission v Futter [2021] FCA 876 File number(s): NSD 1303 of 2020

Judgment of: GRIFFITHS J

Date of judgment: 29 July 2021

Catchwords: STATUTES – 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 – where respondent did not take any active steps in proceeding – penalties imposed

Legislation: Commonwealth Electoral Act 1918 (Cth) ss 289, 304, 307, 309, 313 Evidence Act 1995 (Cth) s 140 Regulatory Powers (Standard Provisions) Act 2014 (Cth) ss 81, 82

Cases cited: Electoral Commissioner of Australian Electoral Commission v Wharton (No 3) [2021] FCA 742 L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157

Division: General Division

Registry: New South Wales

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 26

Date of hearing: 29 July 2021

Counsel for the Applicant: Mr N Swan

Solicitor for the Applicant: Maddocks

Counsel for the Respondent: The respondent did not appear

ORDERS NSD 1303 of 2020

BETWEEN: THE ELECTORAL COMMISSIONER OF THE AUSTRALIAN ELECTORAL COMMISSION Applicant

AND: BARRY JOHN FUTTER Respondent

order made by: GRIFFITHS J DATE OF ORDER: 29 July 2021

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.