Express Law No. 324

30 August 2024

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

The Full Federal Court has allowed an appeal by the Australian Electoral Commission (AEC) concerning the correct approach to determining the number of contraventions arising under s 321D of the Commonwealth Electoral Act 1918 (Cth) (Electoral Act).

Implications

In so doing, the Full Court has provided useful authority on several matters of importance for regulators, including the:

• approach to construing provisions to ascertain the conduct which comprises a single contravention of the provision
• limited extent to which costs orders can properly be taken into account in determining the civil penalty imposed
• need for a reasonable relationship to exist between the theoretical maximum and the penalty actually imposed in assessing an appropriately deterrent penalty.

Background

The proceedings related to the operation of a Facebook page by Mr Andrew Laming, who was at the relevant time a Federal MP. Mr Laming published a series of Facebook posts on the page ‘Redland Hospital: Let’s fight for fair funding’ in the 6 months prior to the 2019 federal election.

At first instance (Electoral Commissioner of the Australian Electoral Commission v Laming (No. 2) [2023] FCA 917), the AEC successfully alleged that the publication of some of the Facebook posts was a breach of s 321D of the Electoral Act because they constituted ‘electoral matter’ and were not appropriately authorised.

The AEC had argued that a contravention of s 321D occurred each time a different individual viewed an unauthorised Facebook post, rather than one contravention for each Facebook post published. This construction was not accepted by the primary judge, nor by O’Bryan J when the same question arose in Electoral Commissioner v McQuestin [2024] FCA 287. The correctness of the AEC’s construction, which was ultimately accepted by the Full Court, was the subject of this appeal.

Reasoning of the Full Court

The Full Court was made up of Logan J and Perry J, who wrote separate concurring judgments addressing different aspects of the appeal, with Meagher J agreeing.

The correct approach to construing the number of contraventions

Perry J primarily addressed the constructional question, that is, whether a single contravention of s 321D occurred each time a post was viewed, or whether only one contravention occurred per post published. Several important propositions with broad application for the manner in which contraventions are counted by civil penalty provisions emerge from the judgment:

• The statutory presumption in respect of singular and plural words in s 23(b) of the Acts Interpretation Act 1901 (Cth) is designed to expand rather than restrict the scope of other provisions. It is unlikely that it will be appropriate to use s 23(b) to read a reference to a ‘person’ affected by contravening conduct as ‘a person [or persons]’: [92]–[93].
• Inconsistency in the number of contraventions arising out of what is, practically speaking, the same conduct may provide an indication of the correct construction of a provision. Here, the effect of Mr Laming’s preferred construction was that a single mass email to a number of recipients would have constituted a single contravention. The same email, sent to the same individuals separately would have constituted a large number of contraventions: [98]. The resulting anomaly tended against the correctness of the construction advanced by Mr Laming.
• Difficulty in determining the number of contraventions that have occurred does not tell against a construction, which may lead to an indeterminately large number of contraventions: [99]. In these circumstances, the court simply ‘does the best it can by reference to the evidence and the drawing of inferences’ or ‘finds that the precise number cannot be ascertained’.
• In some circumstances, analogies can helpfully be drawn between different regulatory regimes. Here, s 33 of the Australian Consumer Law, which operates to create a single contravention on each occasion a representation is viewed, served to provide support for the AEC’s construction: [100]. Section 321D was enacted for the benefit of ‘every’ elector, just as s 33 of the Australian Consumer Law was enacted for the benefit of each person who might otherwise be misled as to the nature of the goods (see Australian Competition and Consumer Commission v Reckitt Benckiser [2016] FCAFC 181 at [145]). 
• The potential inadequacy of the maximum penalty arising under a particular construction tells strongly against the correctness of that construction: [101]. The fact that the maximum penalty would have been a mere $25,200 if a contravening communication was communicated to one person or to ‘500,000 electors’ suggested the incorrectness of the construction. Parliament imposes civil penalties for the sole purpose of deterrence, and is likely to have created provisions capable of achieving this result: [101].  

The appropriate penalty

In determining the appropriate penalty Logan J considered it is not the case that a costs order against the contravenor should be taken into account to simply reduce the level of penalty necessary to achieve deterrence: [29]. A costs order may provide evidence of the respondent’s financial position ([29]), a relevant consideration to the size of the penalty necessary to secure deterrence ([25]–[26]), but even a ‘ruinous’ civil penalty may not be oppressive where general deterrence requires it: [26].

Logan J also reiterated the necessity of a ‘reasonable relationship’ between the maximum possible and the final penalty imposed: [31]. In the event, the Full Court doubled the total penalty imposed for all courses of conduct, to $40,000: [47].

AGS acted for the AEC at first instance and on appeal. Tim Begbie KC and Sarah Zeleznikow appeared for the AEC in the appeal.

Text of the decision is available at: Electoral Commissioner of the Australian Electoral Commission v Laming [2024] FCAFC 109.