Australian Electoral Commission v Kelly [2023] FCA 854

Federal Court of Australia

Australian Electoral Commission v Kelly [2023] FCA 854 File number: NSD 375 of 2022

Judgment of: RARES J

Date of judgment: 27 July 2023

Catchwords: PARLIAMENTARY ELECTIONS (CTH) – application for declaration and pecuniary penalties for alleged contraventions of Commonwealth Electoral Act 1918 (Cth) s 321D(5) – compliance with cl 11(3)(a) and (b) of Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021 (Cth) (Determination) – where candidate in 2022 general election notified in 8pt font particulars of authorisation of posters and corflutes communicating electoral matter – whether notification of authorisation was "reasonably prominent" and or "legible at a distance at which the communication is intended to be read" as required by cl 11(3)(a) and (b) of Determination – held: proceeding dismissed. STATUTORY INTERPRETATION – principles of construction having regard to legislative purpose and objects of Act and legislative intention to enact valid legislation – where Pt XXA of Electoral Act burdened implied constitutional freedom of communication on government and political matter – where the Parliament intended Pt XXA to be within implied freedom – whether requirement in s 321D(5) for communication of electoral matter to include particulars of name and address of person authorising construed as burdening implied freedom – meaning of "reasonably prominent" in cl 11(3)(a) of Determination – meaning of "legible at a distance at which the communication is intended to be read" in cl 11(3)(b) of Determination – use of extrinsic material to confirm construction of Act and legislative instrument under s 15AB(1)(a) of Acts Interpretation Act 1901 (Cth) and s 13(1) of Legislation Act 2003 (Cth). CIVIL PENALTIES – whether respondent acted under mistaken but reasonable belief about facts so as to establish defence under s 95(1) of Regulatory Powers (Standard Provisions) Act 2014 (Cth). CONSTITUTIONAL LAW – whether Electoral Act s 321D(5) and (7) and or Determination cll 11(3)(a) and (b) invalid because they impermissibly allowed infringement of, or infringed, the implied constitutional freedom of communication on government and political matter – where constitutional issue not necessary to decide.