Electoral Commissioner of the Australian Electoral Commission v Laming (No 2)

The case of Electoral Commissioner of the Australian Electoral Commission v Laming (No 2) involved the Electoral Commissioner bringing proceedings against Mr Laming for allegedly contravening s 321D(5) of the Commonwealth Electoral Act 1918 (Cth) by communicating electoral matter on a Facebook page without disclosing his name and town or city. The Federal Court was required to determine whether the communications were indeed electoral matter, whether the presumption that they were electoral matter was rebuttable, if the dominant purpose of the communications was to influence the way electors vote in a federal election, and whether certain exceptions applied. The court also had to consider the appropriate penalties for the contraventions.

The court held that the communications were electoral matter, and the rebuttable presumption that they were electoral matter was engaged. Furthermore, the dominant purpose of the communications was to influence the way electors vote in a federal election. The court rejected the news or current affairs exception and the meeting exception as applicable in this case. Consequently, Mr Laming was found to have contravened s 321D(5). In determining the penalties, the court considered that each Facebook post constituted only a single contravention, Mr Laming deliberately disguised he was the author of one post, he was no longer a member of the House of Representatives, and he cooperated by making admissions. Given that few persons viewed the posts, the court determined appropriate penalties.

Regarding the admissibility of expert reports, the court admitted the reports into evidence, despite objections on the basis of relevance and the potential for prejudice or undue waste of time. The court found the reports to be relevant and useful in understanding how Facebook operates and providing context to the posts in question. However, the court rejected the admission of further expert reports produced during the hearing due to prejudice to the Commissioner and their late production.

Lastly, the court denied Mr Laming's application for leave to withdraw admissions, finding that it was not appropriate to allow him to withdraw his admissions and make different submissions regarding other agreed facts. The court held that leave to withdraw admissions is not freely granted, and the decision should be made based on the context of each particular case.