Australian Electoral Commission v Kelly

The case of Australian Electoral Commission v Kelly involved a challenge by the Australian Electoral Commission against Mr. Kelly, a candidate in the 2022 general election, for alleged contraventions of the Commonwealth Electoral Act 1918 (Cth) and the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021 (Cth). The Commission sought a declaration and pecuniary penalties, claiming that Mr. Kelly had failed to prominently and legibly display the particulars of the authorisation of his electoral communications as required by the Determination. The central legal issues were whether the notification of the authorisation on Mr. Kelly’s posters and corflutes was "reasonably prominent" and "legible at a distance at which the communication is intended to be read" as mandated by the Determination. Additionally, the court had to decide if the Electoral Act and the Determination validly allowed for the infringement of the implied constitutional freedom of communication on government and political matters.

The court examined statutory interpretation principles, taking into account the legislative purpose and intention behind the Electoral Act and the Determination. It concluded that the requirement for authorisation details to be reasonably prominent and legible at an intended reading distance was intended to be a practical and reasonable measure, not an absolute condition applicable at all times and under all ambient light conditions. The court found that Mr. Kelly had acted under a mistaken but reasonable belief that his authorisation details complied with the law, and thus, he was not liable for a civil penalty order under the Regulatory Powers (Standard Provisions) Act 2014 (Cth). The court also held that the implied freedom constitutional and validity issues did not arise because Mr. Kelly was not found liable.

In conclusion, the court dismissed the proceeding, finding that the display of the 8pt authorisation posters did not contravene the Electoral Act or the Determination. The court ordered that the proceeding be dismissed and that the applicants pay the respondent’s costs.