Laming v Electoral Commissioner of the Australian Electoral Commission

[2025] HCATrans 28

[2025] HCATrans 028

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B75 of 2024

B e t w e e n -

ANDREW LAMING

Appellant

and

ELECTORAL COMMISSIONER OF THE AUSTRALIAN ELECTORAL COMMISSION

Respondent

GAGELER CJ
GORDON J
EDELMAN J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 APRIL 2025, AT 10.05 AM

Copyright in the High Court of Australia

MR N.H. FERRETT, KC:   May it please the Court, I appear with my learned friend MR J.R. MOXON for the appellant.  (instructed by Bell Dore Solicitors)

MR T.M. BEGBIE, KC:   If the Court pleases, I appear with MS S. ZELEZNIKOW for the respondent.  (instructed by Australian Government Solicitor)

GAGELER CJ:   Thank you, Mr Begbie.  Mr Ferrett.  It is a relatively short point, Mr Ferrett.

MR FERRETT:   I agree, with respect, and I hope that the brevity of the submissions reflect that.  Your Honours will, of course, have identified that the issue between the parties is whether section 321D of the Commonwealth Electoral Act is contravened once, when one fails to provide the particulars, or every time someone receives the information in the message.

EDELMAN J:   In terms of calculation of the penalty, it is hard to see that it could make much difference.

MR FERRETT:   It depends, I suppose, on the breadth of the communication.  It could make a difference in some circumstances.  In this particular case, I accept, with respect, that it would not make much difference.  And indeed, the variation between the Full Court and the primary judge was not massive, but the amount that was sought by the Commissioner at first instance on the basis of his theory was in the six figures for these publications.

As your Honours will have seen from our written submissions, we focus fairly heavily on the structure of the section to say that subsection (1) of the section specifies circumstances in which the section is engaged.  We would also draw attention to subsections (2) through (4) as refining the circumstances in which the section is engaged.

We point and put some emphasis on that because the opposing theory, as we apprehend it, is that subsection (5) refers, in using the word “communication” in the table, back to the concept of “communication”, if I can put it that way, in subsection (1).  But if that is to get to the point where one says that subsection (1) states part of the obligation that is ultimately stated in subsection (5), the construction problem becomes all the more difficult when one takes into account that subsections (2) through (4) must also, on that logic, inform the construction of the obligation in subsection (5).

In our respectful submission, the logic of the section and the way that Parliament has laid it out matters, and it was plain, in our respectful submission, that subsection (5) is meant to state on its own what the obligation was.  When one focuses on that statement – and your Honours will be aware that the section is set out on page 67 of volume 1 of the joint book of authorities, subsection (5) appearing on page 69 – the words that are used are that:

The notifying entity must ensure that the particulars set out in the following table, and any other particulars determined under subsection (7) for the purposes of this subsection, are notified in accordance with any requirements determined under that subsection.

GLEESON J:   When does liability for failure to ensure occur?

MR FERRETT:   We say, because it is stated in terms of an obligation to do something or not do something, the omission occurs at the point at which that Act fails to be observed.  What subsection (1) does is say that you will not be liable unless, ultimately, it is communicated to someone.  So, upon communication to someone the liability for punishment arises, but the act which founds liability is the act – sorry, the omission which founds liability occurs at that earlier point.

GLEESON J:   Is it not at the point of notification?

MR FERRETT:   It is at the point of omitting to notify the particulars, yes.  So, just to be clear, there cannot be any penalty levied unless subsection (1) is satisfied, but the act which makes one liable or the omission which makes one liable is that specified in subsection (5).

EDELMAN J:   So, you have committed the omission when you produce a communication – using that as a noun – but communicated to no one.  No one sees it.

MR FERRETT:   That is right.

EDELMAN J:   How do you know you have even finished the communication?

MR FERRETT:   It becomes a communication for which liability is founded upon it being communicated to someone.

EDELMAN J:   Well, then the liability and the act requires somebody to have received it.

MR FERRETT:   No, the – sorry, the liability requires someone to have received it, yes, but the omission which founds the liability is at that earlier point, because the alternative view is that you are making an omission at some point after the message has left your control.

EDELMAN J:   Until it has left your control, you have not even necessarily finished the communication yet.

MR FERRETT:   But at the point at which it leaves your control once, the omission is done, but it could go to many, many people after that.

GORDON J:   Can I just test that in relation to – not the item under subsection (5), which we are dealing with, but take the item of the sticker on the car.

MR FERRETT:   Yes.

GORDON J:   Which is, I assume, caught by item 3.

MR FERRETT:   Yes, I agree with that, with respect.

GORDON J:   So, I put a sticker which omits to contain the particulars, and I put the sticker on my car.  At what point is the omission under (5) and the liability under (1) established?

MR FERRETT:   The liability is established at the point at which the first person sees it because, until then, it has not been communicated within the meaning of subsection (1).

EDELMAN J:   But that is the respondent’s case.

MR FERRETT:   No, with respect, it is not the respondent’s ‑ ‑ ‑

EDELMAN J:   You have not got a communication until somebody sees it.

MR FERRETT:   But what the respondent says, adding on to that, is to say that every time thereafter there is a communication.  The difference between the two is that, we say, the single omission does not become something to be punished or to be deterred from until there has been communication to at least one person.  That is different to saying that there is an omission every time it gets transmitted to someone, subsequently.

You can test it this way, with respect.  If it is right to view in in the way the respondent does, then for example, taking from item 3 in the table, if there is a fridge magnet that you put on your fridge, every person who sees it at a party at the house the following night is someone who receives the information, so there is a penalty levied for every one of those people who looks at it.  That seems unlikely to have been what Parliament intended.

Even more ludicrously, if that is right – if I put a fridge magnet and I see it three times during the week – there is a separate contravention for every time I have seen the communication.  So, the distinction we draw is just to say that once there has been a communication, that makes it something worth punishing, but the omission is the thing that happens when you fail to put the notifying particulars on the message in the first place. 

GLEESON J:   Mr Ferrett, Justice Gordon’s question referred to a person placing a sticker on a car.  Does this apply to a person placing a sticker on a car or does it apply to a different class of person, which is the person who designs the sticker?

MR FERRETT:   If you look at the construction of the section, you have to look for who the notifying entity is.  So, I do not think that if I go to a rally and get a sticker and put it on my car – for a political candidate who has held the rally – I am going to be liable, as I understand the interpretation of the section.  The person who has produced the sticker in the first place failed to put the notifying particulars on the sticker; that is the person who will be liable for a penalty. 

EDELMAN J:   If you send an email, and it is copied to – or in the address bar, it is sent to 10 people, is there one communication or 10?

MR FERRETT:   There is one communication, in that circumstance.

EDELMAN J:   But if you send exactly the same email in exactly the same way but, rather than putting 10 people in the “to” line, you send it 10 times, there is 10 communications.

MR FERRETT:   Yes.

EDELMAN J:   So, everything depends on whether you put all the names in one line or whether you put the names in separate lines.

MR FERRETT:   Yes.  I understand the absurdity to which your Honour is adverting, but absurdities or anomalies come up either way, with the way this section is written, and that is one of the points that Justice Logan made in the Full Court.  It is unfortunate that this provision has not been drafted with more clarity.  The sorts of examples I was giving you a moment ago show that there will be anomalies whichever way you interpret this provision. 

There will be absurdities, but the point we come to is the Parliament has identified a norm of conduct which on its plain meaning falls to be observed once, or not, and it has set a maximum penalty for that, and the logic of the respondent’s position is that that maximum penalty does not really mean very much.

GLEESON J:   The requirement of ensuring is a form of absolute liability, is it not?  If that is right, why would it matter at what point the provider, or the intended provider, of the communication loses control?

MR FERRETT:   Yes, “ensure” implies an absolute form of liability, but it does not modify, in our submission, the event which falls to be observed or not.  As I say, the liability is for notifying or not notifying, and the natural language of the provision points to that being the point at which the message is communicated.

EDELMAN J:   What are the absurdities of the respondent’s position that you refer to? 

MR FERRETT:   I am sorry, your Honour?

EDELMAN J:   What are the absurdities that you refer to when you say, even on the respondent’s position, there are some absurdities that arise?

MR FERRETT:   For example, that point I was making earlier, if it is about simply the receipt of information, if I look at the same message on two separate days, then on that logic, the information has been transmitted twice and there are two contraventions.

EDELMAN J:   But you are the one person; subsection (1) is to “a person”.

MR FERRETT:   But that is assuming that you join subsection (1) and subsection (5) as stating the single obligation.  If you separate subsection (1) and treat it the way it is laid logically, then it is identifying the point at which liability cuts in, rather than seeking to identify part of the obligation which subsection (5) is dedicated towards.

GORDON J:   In the end, we are driven down to this, are we not?  If, on your construction, here we have three events giving rise to contraventions, which has to take into account an assessment of the penalties, some assessment of the extent to which that communication was seen as distinct from the respondent’s position, which is:  we do not have three, we have 28 different contraventions, because we can identify at least 28 people who were the subject of the recipients.

MR FERRETT:   Yes.

GORDON J:   So, at some point, someone has to make a guestimate or some assessment, and then when you come on the respondent’s construction to sentence, one has to make a similar kind of arrangement in determining what the penalty might be.  So, on your analysis, it is either course of conduct on the respondent’s approach or you are looking at it at the other end in terms of assessing how you determine penalty.

MR FERRETT:   Yes, yes.  If one looks, for example, at the facts in McQuestin where you saw a circulation of X – I think it was 60,000, or something like that – you would say the circulation is one of the factors you would take into account in assessing penalty.  But on the analysis of our learned friends, presumably, one has to prove up those 60,000 if one is going to come up with an assessment of deterrence.

GORDON J:   Do you adopt Justice O’Bryan’s reasoning in McQuestin?

MR FERRETT:   We adopt these things from it – and this is not to try ‑ ‑ ‑

GORDON J:   I do not mean to take you out of your order.

MR FERRETT: With respect, that is fine, and I do not mean to try and parse what Justice O’Bryan says. We adopt these things. First of all, that there is a distinction to be drawn between prohibition such as those in the ACL and the ASIC Act, on the one hand, and this being a requirement to do something rather than a negative requirement. That is, in our respectful submission, important.

The other important matter of context which one draws from the ACL circumstance or the ASIC Act circumstance is that those all provide for a private right of action. The fact that those provisions are focused also on consumer protection actionable by the consumers is an important matter of internal context in those statutes – why you would interpret those differently. Part of what our learned friends advance is that the civil penalties regime generally provide some sort of background which means that you should interpret this provision in a particular way.

In our respectful submission, that does not take you very far at all, and it is important to focus on the text of the statute and that structural deliberation that we say can be identified in the statute.  The other point of context – did I answer your Honour’s question, with respect to the question?

GORDON J:   Yes, thank you.

MR FERRETT:   Another point of context that is raised against us and, indeed, this is based on what was found in the Full Court, is that section 4AA provides a compelling basis for preferring the respondent’s construction.  That is based on what her Honour Justice Perry said at paragraph 94 of the Full Court’s reasons.  That is on page 117 of the core appeal book.  Your Honours will see, on about the fifth line of that paragraph, her Honour says:

Section 4AA therefore addresses the possibility that the communication of information to one person may be for the dominant purpose of influencing the way that that elector votes so as to fall within the definition, while the communication of precisely the same information to another person may be for a different dominant purpose, bearing in mind the note to s 4AA(1) that there can only be one dominant purpose for “any given communication”.

That, we respectfully submit, should invite consideration of what 4AA actually says.  The section is in volume 1 of the joint book of authorities at page 33, and your Honours will see in subsection (1) that it talks about “electoral matter”, meaning:

matter communicated or intended to be communicated for the dominant purpose of influencing the way electors –

and we emphasise the plural there:

electors vote in an election –

Coming back to your Honour Justice Edelman’s question about an email a moment ago, if there is an email to 10 people that is sent to those 10 people at once, it is pretty difficult to see why there would be a different dominant purpose within the one message for each of those 10 people, rather than there being a dominant purpose either to influence electors, plural.

That tends, in our respectful submission, to suggest that there is a focus on the communication as something being sent out to a number of people rather than a focus on the receipt of information by each of those individuals.  It is highly unlikely, in our respectful submission, that the legislature meant to say you have to break it down and examine the dominant purpose by reference to each of the recipients of the communication on the one occasion.

GORDON J:   Is that right, given subsection (2)?

MR FERRETT:   I beg your pardon, your Honour?

GORDON J:   Is that right, given subsection (2)?

MR FERRETT:   That is the point of departure for Justice Perry’s reasoning.  But we submit that what subsection (2) refers to is occasions on which the same message might subsequently be to – use loose language – republished, rather than to talk about each creation of the single message as, for example, in the electronic sphere, some sort of collection of atoms that goes out to each separate recipient.  So, in other words, to come back to that same example, if there are two emails separately to two groups of people, the second of them would be a recreation of the first.

EDELMAN J:   And if there is one email that is sent, for example, to a bunch of electors, but then copied to, let us say, the administrative department of the sender, the dominant purpose is deemed to be exactly the same for the administrators that receive it as well as the electors that receive it.

MR FERRETT:   Yes.

EDELMAN J:   Right.  Even if we know, as a fact, that sending it to the administrators is just for the purposes of filing and logging the communication.

MR FERRETT:   If there were no electors on the email, then – if you will just let me run through the process – then there could not be any suggestion that the dominant purpose was to influence the electors.  If, to use your Honour’s scenario, there is publication or transmission to a bunch of electors and also to some people who will administratively deal with it – file it, whatever – the dominant purpose will be, in that scenario, to influence electors within the meaning of the statute.  The fact that there is some other purpose as well does not detract from what is the dominant purpose.

If your Honours will just give me one moment, because I did get a little bit off track. We have pointed in our written outline, and I said something a moment ago, about the distinction to be drawn between civil penalty provisions in statutes like the ACL and in the ASIC Act. Can I just, to close off on that point, in making the submission that the other provisions do not tell you very much about the proper construction of this provision, I will just point to a couple of things.

I have said something about the lack of a private right of action in this statute.  That is, as I say, a compelling matter of internal context which suggests that – by that, I mean within the Act – which suggests that there is a separate approach to be adopted here.  Here, the Commissioner is given a right to enforce, obviously, and that recognises the public interest in play which both parties agree on.  That is identified by Justice Isaacs in Smith v Oldham, and if I could just – I know your Honours will be familiar with it, but if you will bear with me for one moment, can I just take you in, part C of the joint book of authorities, to page 493 within the ‑ ‑ ‑

GAGELER CJ:   Can you give the Commonwealth Law Reports reference, please?

MR FERRETT:   The case is reported, of course, at 15 CLR 355, and I am going to page 362 of the report. And your Honours, will see a bit over a third of the way down the page, the paragraph beginning:

So far as concerns –

We would emphasise, in particular, the sentence beginning on line 4:

The vote of every elector is a matter of concern to the whole Commonwealth, and all are interested in endeavouring to secure not merely that the vote shall be formally recorded in accordance with the opinion which the voter actually holds, free from intimidation, coercion and bribery, but that the voter shall not be led by misrepresentation or concealment of any material circumstance into forming and consequently registering a political judgment different from that which he would have formed and registered had he known the real circumstances.

That goes further than the interest actually in play here, because the Act does not seek to regulate the truth or otherwise of a statement, it seeks to hold a person accountable for the statement that they have made.  But the point to be drawn from that passage is that it is a common public interest that is being enforced by this Act, as distinct from a public interest allied with private interests, as is the case in those other consumer statutes.

Can I then just draw attention to an argument that our learned friends make in their submissions at paragraph 26.  I mean paragraph 26 of the respondent’s submissions, obviously enough.  They put it this way:

In that context, there is nothing surprising about Parliament having enacted a provision which would permit a court to impose a penalty sufficient to deter a political party or participant (of whatever sophistication, size or resources) from anonymously communicating electoral matter (no matter how egregious or misleading it may be) in whatever circumstances (no matter how deliberate, calculated or repeated) to any person.

One thing that should be drawn from that is that the egregiousness or the misleading nature of the message are not things which the statute seeks to regulate.  As I say, the only thing that the statute seeks, relevantly, to regulate or to do is make sure that the voters know who is publishing the matter, whether it is a statement or an opinion, so that the voters can make a judgment about how much importance they place in that statement or in that opinion – how much they trust it.

In a sense, the point of that submission is to identify a bogeyman which supports the perceived merits of what our learned friends call the per person approach, and that is essentially to do what the Parliament did not do, in our respectful submission, which is to extend what could be the maximum penalty beyond the deliberate maximum penalty decision that Parliament made.  It gels with an essential part of our learned friend’s argument, which is:  these statues are all about deterrence, and a bigger penalty will always be a greater deterrent.

The point of deterrence is not to smack someone with every single dollar you can, but rather, to arrive at an appropriate fee or an appropriate cost – to use the conception of it by Justice French – within the range that Parliament has allowed.  If one is to move to our learned friend’s construction, then one moves to a point where the decision about what Parliament has said about maximum penalty is set at nought.

Your Honours, I had proposed to say something about the particular statements by Justice Perry or the seven difficulties that her Honour identified – or textual considerations, to put it more accurately.  I have addressed, really, the first three of those in the course of these submissions.  Can I just draw your attention to ‑ ‑ ‑

GORDON J:   These are the matters set out in 18 and following of your written submissions?

MR FERRETT:   Yes.  On reflection, I think I have probably covered the most important of them.  The only point that I wish to make further, with respect to that, on top of what we say in our written submissions, is that in the range of cases that our learned friends refer to in the Federal Court and in the Full Court of the Federal Court, the point about multiple contraventions in that consumer sphere has been assumed rather than litigated, because of the sorts of cases that they were.  We do not seek to come here today to persuade your Honours about the proper construction of those other statutes, only to say that those cases do not assist very much in the proper construction of section 321D.

Unless I can help your Honours further, those are the submissions we wish to make.

GAGELER CJ:   Thank you.  Mr Begbie.

MR BEGBIE:   Your Honours, our friend’s submissions depend entirely upon giving the words “the communication” in the table to subsection (5) a particular meaning which is at odds with the rest of the statute.  It is by the means of that reading that our friends say, in their notice of appeal, that the section is a prohibition against publication.  If your Honours look at the ground of appeal, it is expressed in terms which say that the error was failing to find that a contravention occurred when the appellant caused a Facebook post to be published.

EDELMAN J:   But that is not their case anymore.  Their case now seems to be published and seen by one person – that liability attaches once one person sees it.

MR BEGBIE:   Yes, I think your Honour is right to identify that there is an extra nuance, but the omission, as it is put, as a singular concept, is an omission that occurs at the point of publishing.  Now, we would like to tackle that reading of the Act by going a little bit more systematically through the statutory purpose and the statutory provisions, I hope, not in a way ‑ ‑ ‑

EDELMAN J:   Just before you do, I take it you are using, in that sentence, the word “publish” in a very non‑technical sense, which means not necessarily to be seen by anyone.

MR BEGBIE:   I am happy to – it is a bit hard to know what sense ‑ ‑ ‑ 

EDELMAN J:   “Publish”, in the law of defamation, means it has to be seen or communicated.

MR BEGBIE:   Yes, it is seen by someone.  Exactly.  The way the submission was originally put was “publish” in the sense of putting the post up on Facebook.  Whether or not anyone sees it, it has developed, now, to a submission that that is the omission which amounts to the contravention, but you can only be penalised for that when someone sees it.

Now, I will say something briefly about how a single section – for 321D – could coherently operate to achieve that effect, and, of course we say it cannot.  But can I start with the purpose, as revealed by Smith v Oldham.  Your Honours have the references that we would go to – I will not go through all of those, but I do want to pick up what my learned friend said about Justice Isaacs’ judgment.  If your Honours have that, at 362 of the report, 493 of the ‑ ‑ ‑

GORDON J:   Is this going to the history of the Statute?

MR BEGBIE:   It is going to the history and the purpose, your Honour.  So, this concerns a provision which is a precursor provision to the same general purpose as the current provision, namely, it is an authorisation offence – it is the very early form of that – and it is a publish – you must not publish without having particulars included, broadly speaking.

What Justice Isaacs emphasises is that the focus of a provision such as that – and we would say, I think uncontroversially, a provision such as the present one – is the protection of the vote of “every elector”, that is, each person.  What our friend takes from this part of Justice Isaacs’ judgment is that the concern is merely a public interest concern because:

The vote of every elector is a matter of concern to the whole Commonwealth –

GLEESON J:   Well, it is both.  It is a matter of public concern, and that is the concern of every elector, and that is what is reflected in subsection (1).

MR BEGBIE:   That is precisely where I was going, thank you, your Honour.  To say that an individual’s franchise in the system of representative democracy is of no moment to them and protecting that franchise of that individual is, therefore, simply a collective exercise by Parliament is to misunderstand the interests that are in play.

You can see that that concern for the vote of each elector is picked up in the offence provisions in the Act – I do not need your Honours to turn this up.  But in Compilation No. 62, the provisions we have noted on our oral outline are all provisions which direct attention to “the vote” – singular – “of an elector” – singular.

The provisions that work a bit differently at that time were the publish provisions, which made it an offence to publish, broadly speaking, without the authorisation particulars being included.  They were sections 328, 328A, 328B, and they were all repealed and replaced with the provision your Honours are now dealing with.

What your Honours will see from that is two things.  First, 321D(1) is concerned now, like those other provisions, with the vote of each person.  It is concerned with a communication:

to a person –

so, it aligns with the purpose that Justice Isaacs set out, and it aligns with the other offence provisions which are concerned with the vote of an elector.

GAGELER CJ:   I was just looking at section 23(b) of the Acts Interpretation Act, which says:

In any Act:

. . . 

(b)words in the singular number include the plural –

Does that apply?

MR BEGBIE:   Unless there is a contrary intention ‑ ‑ ‑

GAGELER CJ:   You say there is a contrary intention here, do you?

MR BEGBIE:   We say it is clear that when 321D(1) speaks of a communication “to a person”, it is speaking of “a” person.  It may, of course, be a communication to person A and a communication to person B and a communication to person C, and so on; that could go through for 100,000 people.  But each of those is a communication to a person, and that is what is what the Act is concerned with.

EDELMAN J:   Why do you say it was different in the precursor provisions relating to “publish”?

MR BEGBIE:   Because in that situation, your Honour, the prohibition was on the act of publishing itself without the particulars included.  That language has been, we say, advertently moved away from in 321D.

EDELMAN J:   But was there authority that said that “publish” occurred only once, once one person had seen it?

MR BEGBIE:   Not that I am aware of, your Honour, but at least you could see the scope for that argument in a way we say you cannot see the scope for under the new language.

GORDON J:   Do the extrinsic materials support that view for this change?

MR BEGBIE:   They – not the point I have just made, your Honour.

GORDON J:   No?

MR BEGBIE:   No.  They do support it indirectly, in a way I will explain in just a moment.  So, what you see – just to round this point out – is an advertent statutory change to a provision which aligns with the protection of the position of each recipient of a communication and which moves away from the old offences of “publish” into a completely new civil penalty regime which is directed at each communication to a person.  Your Honour the Chief Justice’s question about section 23 you will recall was addressed by Justice Perry at 93, and we say her Honour’s analysis of that was absolutely right.

The second point – and this comes to what your Honour Justice Gordon was asking about, the extrinsic materials – what they say about purpose is traced back to the report of the joint Senate committee on Electoral Matters following the 2016 election.  At that election, the authorisation requirements had been seen to be, frankly, woefully inadequate to deal with modern methods of communication like bulk SMS messages, robocalling, social media and the like, and a major focus of the committee was on the need to have authorisation requirements which captured those modern forms of communication and which brought up to date and made consistent all of the communication requirements.

We have given your Honours the references, and I do not need to go to them, but that was the concern that, in our submission, ties back into the per person type of analysis, because when you enact, against that context, a provision which is directed at a communication to a person, you are clearly picking and responding to something like an SMS message sent to a person, because that same message might be sent in bulk to a million people, and you are picking up that parliamentary concern with respect to each of those people.  The same with a robocall, and things like that.

EDELMAN J:   I am not sure why there is a difference between you and the appellant on this point.  I mean, the appellant says that a bulk message involves only one communication, but if it were sent multiple times it would involve multiple communications.  Is it right, from a technical perspective, that a bulk SMS is only sent once?  I mean, from the technical perspective, is it not the device actually sending multiple communications?

MR BEGBIE:   I regret that I cannot tell your Honour, technically, what happens.  I can tell your Honour that each recipient of whatever that device does receives the message.  The word “communication” needs to be treated carefully here, because your Honour referred to it as a noun.  No doubt it is a noun, but it is a noun that can describe a thing in its connection with an event or it can describe the event.  What our friends need it to do is to be only a thing, divorced from the event.  I am going to develop that a little bit more now.

GAGELER CJ:   What is the event, I am sorry?

MR BEGBIE:   The event is the transmission or imparting of electoral matter by one person to another person.

GAGELER CJ:   That is the event that engages the section?

MR BEGBIE:   Yes.

GAGELER CJ:   But it is not the conduct, is it, that is required by the section?

MR BEGBIE:   It is part of the conduct required by the section.

GAGELER CJ:   I see.

MR BEGBIE:   Of course, the conduct also requires you to take whatever steps are necessary to take to ensure, but you cannot breach it without that first bit of conduct.

EDELMAN J:   The appellant is using “communication” as a noun and you are using “communication” as a gerund.

MR BEGBIE:   Well, we are saying the Act uses “communicate” and “communicated”, obviously enough, as verbs describing actions done or to be done ‑ ‑ ‑ 

EDELMAN J:   Verbal nouns.

MR BEGBIE:   This is exactly into the universe of verbish nouns and nounish verbs, and we do not think we are saying anything at all remarkable about the use of the word, but the remarkable use of the word is to say “communication” means a thing like a sticker or a fridge magnet, without any reference to the event that that thing mediates.  That is the strange use of the word, and that is the use our friends need to establish, otherwise we are all talking about an event, and if it is an event, it is the event identified in subsection (1) of communicating electoral matter to a person.

GAGELER CJ:   If this were not a civil penalty provision, but if it were a criminal provision, and we applied the concepts in the Criminal Code, would not subsection (1) be a circumstance of the offence and subsection (5) would be the physical element of the offence?

MR BEGBIE:   It may be, your Honour, and I pause because the way 321D works is to allow room for the notifying entity to not be the person that does the actual communicating.  So, what your Honour says may be right about that, but I have not tried to analyse it in those terms, and we say, of course, you do not need to, because it is not an offence.  There is a choice to move away from there.

GORDON J:   Sorry, what did you just put then?  I did not hear what you said.

MR BEGBIE: We are saying we do not analyse it in those terms for the simple reason that it is not an offence, and Chapter 2 of the Criminal Code does not apply and you do not need to conduct that sort of analysis.  What you need to do is ask what comprises a breach of this provision, and what are the elements of that?  Well, there are three elements in subsection (1) that the regulator must establish or there will be no breach.  Something is ‑ ‑ ‑ 

GORDON J:   It works in this way, does it not?  If you sort of – do not let 321D(5) wag the dog – you have someone who puts up something which constitutes electoral matter, which a person sees.  The question is whether or not the person who, in effect, is responsible for it has included the particular under (5).

MR BEGBIE:   Yes.  They have to work together; it is confounding to separate them in the way ‑ ‑ ‑ 

GORDON J:   I do not know that it is confounding.  The question is – it is directed at ensuring, as you said up‑front, that the person who reads it knows who has authorised it.

MR BEGBIE:   That is so, that the way ‑ ‑ ‑ 

GORDON J:   And the person that communicates it may not be the person who is responsible for the authorisation.

MR BEGBIE:   That is also so.  But we nonetheless have to prove that a person communicated something to a person; we have to prove that it was electoral matter; and we have to prove that it was electoral matter of one of the kinds in 321D(1)(a), (b) or (c); and having done that, we have to prove, we say, with respect, that the communication that has been identified in those elements, that the notifying entity failed to include the particulars.  And, if we do that, and we do that for each communication to a person, in respect to each communication to a person, there has been that failure to ensure, and with, that a separate contravention.

GORDON J:   Say we have a corflute that is up on a house.  It has not had the authorisation particulars on it, so it has failed 321D(5).  On your analysis, every time someone drives past it, it is a communication?

MR BEGBIE:   That is so, your Honour.

GAGELER CJ:   And the same with a fridge magnet:  every time I get a glass of cold, refreshing water, I am a person who is seeing the fridge magnet, and there is a separate breach, is there?

MR BEGBIE:   Well, we need to be careful with these examples.  No is the answer to your Honour’s question, except, perhaps, in rather remarkable circumstances and possibly – and it really depends on the circumstances, when we come back to your Honour Justice Gordon’s question – the question is:  was it a communication for the dominant purpose and is it carved out by one of the exceptions in section 4AA?

Now, my friend chose the fridge magnet at a party.  You do not get to the starting blocks with that, that is a communication that is made by, if you like, the host of the party to other people who know who the host is, and it will be excluded by 4AA(5)(c).  It may be that the corflute example is an example which involves a private individual expressing their views about things, and they are not going to be a disclosure entity or a notifying entity.

GORDON J:   We are not talking about those people.

MR BEGBIE:   No.

GORDON J:   We are talking about someone who has the purpose identified – we are trying test the facts of this case.  We are trying to work out:  what is the position in relation to these facts?

MR BEGBIE:   Yes.

GORDON J:   At the moment, on your analysis:  the corflute went up, it would be a communication which is caught by subsection (1) each time someone drove past it.

MR BEGBIE:   Yes – and I am sorry, just to finish that – the communication being the receipt of the information by the person driving past, not the corflute in and of itself.

GLEESON J:   I do not think you can assume that the fridge magnet becomes a private communication when it is stuck on somebody’s fridge, because the reason that it is created as a fridge magnet is to be available to be observed by anyone who opens the fridge.  There might be a question about whether or not there is a separate communication every time the same person reads the same information.

MR BEGBIE:   Yes, there clearly is not.

GORDON J:   I do not know about that.  I mean, repetition of communication is what achieves getting into someone’s brain that that is what they should do.  I mean, we know that from media, that is why we have media.  Repeated messages is the way in which we persuade somebody to accept a fact.  These are all the sorts of things that arise, I think, if you adopt this every time it is communicated to a person it is a contravention.

MR BEGBIE:   Well, your Honours ‑ ‑ ‑

GORDON J:   How would you – I know from your submissions, at least, that it would require a sort of estimate of the number of people who drove past, traffic flows.

MR BEGBIE:   Yes, exactly that.

GORDON J:   It does not seem to be conducive to administration ease.

MR BEGBIE:   Well, we would respectfully disagree with that, your Honour, for this reason, that that kind of analysis happens on a weekly basis in civil penalty proceedings across all sorts of regimes and it poses no difficulty at all.  And I can show your Honour that in the case of Reckitt Benckiser in just a moment, but you could take any number of cases which illustrate that proposition.

EDELMAN J:   I suppose, even on the appellant’s case, if you put a corflute at the front of your house one morning, there would be one contravention.  Then, if you took it down overnight and you put it up the next morning, there would be a second contravention.  If you took it down again and put it up the third morning, it would a third contravention.  It would be an odd circumstance if the Act were to measure communications by reference to whether you have taken it down and put it up again the next day, in the same way, as with bulk communications, it would be odd whether or not it turned upon whether the technology was such that the device was sending out 30 SMSs or whether it was sending out one SMS to 30 people.

GLEESON J:   What is more important is the effect on individual voters.

MR BEGBIE:   That is so, and so we embrace both of what your Honours have said there.  That analysis works when individual voters’ interests are protected by a provision which operates at the level of what is communicated to a person, as opposed to operating at the level of a singular omission which depends on the almost flukey vagaries of the kinds of things that your Honour Justice Edelman has been drawing out – are you putting 10 addressees in the one email or in 10 emails? Are you putting corflutes up and down?

JAGOT J:   That all cuts both ways, though.  Including the individual voter object – I mean, it still achieves its object on the appellant’s case, because if you comply with it, the thing that you publish – using that loosely – will perform the object of, no matter how many people look at, it performs it every time.  The mere fact that you might get more offences or more contraventions does not mean that – to me, that does not really lean one way or the other, they do not – both approaches do achieve the purpose of ensuring transparency.  I am just not sure that all of those things really count, it is just which sort of constructional choice best reflects the operation of the statute, and there are things pointing in both directions here, in this case.

MR BEGBIE:   Your Honour’s proposition contains within in it an idea that we would test, with respect, and it is the idea that in both situations the object is achieved.  We need to move, here, to a realistic – I do not mean we have not been talking about realistic scenarios, but I need to test your Honour’s proposition with a realistic scenario of this kind:  a major political party publishes, through a newspaper distributed to tens of thousand of voters, an attack ad on an opponent that does not reveal the source of the attack ad ‑ ‑ ‑ 

JAGOT J:   No, I understand this point.  My point is the object is to make sure people comply with this.  If you take that as the starting point, people comply, as opposed to do not comply, the number of contraventions really does not matter.  It is intending to, from the outset, make sure, in the things that are going to be published, that there is this information disclosed.  That is the way you achieve – that is a perfectly legitimate way to achieving the object, is my point, just as legitimate as wanting to say:  if it goes to a million people, there are a million offences.  It is not necessarily more efficacious to do that than it is to achieve compliance – that is the point.

In order to make your point, you would have to assume noncompliance, and that there is some statutory object to say that the more number of eyeballs that see it in any circumstance means that part of the object is to be achieved by constituting each one of those as a separate offence.  I am just saying that it may or may not be so that that better achieves the object.

MR BEGBIE:   Yes.  I was coming from the other end, your Honour, and that is to say that a civil penalty provision has been created with a maximum penalty of $25,000.  We know the purpose of that is to deter people across the entire spectrum of all failures to include authorisation particulars.  If you can see that that amount would be an easy and comfortable cost of doing business for some people in relation to some forms of publication, then there is a problem.

JAGOT J:   Well, it is not really cost of doing business, here.  That is the difference.  We are not in that context of people making profits and doing things to maximise their profit at the expense of others.  We are in a completely different context.  I am not sure the cost of doing business way of thinking has anything to do with this provision.

MR BEGBIE:   We, again, would say it does.  That is not, perhaps, the most apposite form of the many ways that same idea has been expressed, but, ultimately, is the price of contravening a price too high to pay?  That is what the cost of doing business is directed at.  And if ‑ ‑ ‑ 

JAGOT J:   I do not get how that works in a political context, where being found to have contravened this may well be very damaging to a political brand, and so it is not just the monetary amount.  For me, it is in a completely different context from misleading and deceptive conduct in commercial and financial circumstances.  I just do not see an analogy there, myself.

EDELMAN J:   Cost of doing business usually means you treat the penalty as an expenditure item, and that expenditure item is not going to deter in the ultimate profit line, but the point is there is no profit line in these types of cases.

MR BEGBIE:   There is no profit line in other types of cases, so Pattinson is a good example of that.  Pattinson is a case where the cost of doing business analysis was picked up but applied to whether the expenditure on the penalty was a price you were prepared to pay for doing the thing that the Act proscribed; and in the union’s case, it had been a price they were prepared to pay, repeatedly, for “no ticket, no start” representations.  Now, you could say, I suppose, no doubt that had some benefit to them financially, in terms of memberships and so on, and we would say the same thing applies here.

GORDON J:   Your point is that, as I understand the argument that is being put, is $25,000 is too low if it is one offence.

MR BEGBIE:   Yes.  Put simply ‑ ‑ ‑ 

GORDON J:   That is your case.

MR BEGBIE:   ‑ ‑ ‑ if a billionaire candidate wanted to promulgate to half of Australia, over the course of the AFL grand final, messaging that was attacking opponents without any identification of where that messaging was coming from, that might be a very powerful communication strategy, and it might be a very cheap one to add $25,000 to whatever the cost of running those ads was, if it meant having a meaningful impact on candidates getting elected, and that means, if it involved a meaningful impact on the free voting choices of each elector that watched the grand final.

EDELMAN J:   Did Parliament have those sort of mass communications in mind?

MR BEGBIE:   Yes, that is what the joint committee was dealing with.  I have not drawn that example from the joint committee report, but that is squarely what the joint committee was dealing with, and it illustrates something that I think it comes back to – I cannot remember whether it was Justice Gordon or Justice Edelman making this point, about the way a court would approach a case on our construction.

It does not mean there is some crazy in terrorem penalty that is going to be imposed.  It means that a court will, in accordance with Pattinson, exercise the penalty discretion reasonably, having regard to the circumstances.  But it does mean that it can do that in ways that will pick up cases other than ‑ ‑ ‑

EDELMAN J:   Do you accept that Pattinson does not exclude the possibility of the use of the course of conduct principle?

MR BEGBIE:   Of course not.

EDELMAN J:   Although it somehow does exclude proportionality in terms of just desert, but one has to disregard that, even in quasi‑penal regimes.

MR BEGBIE:   That is so, your Honour.  And that is what Pattinson says, and that analysis would be conducted in a case of the kind I have described, and there would be absolutely no difficulty with that – it would be a completely conventional, unsurprising and uncomplicated exercise for a court to undertake that.

JAGOT J:   But your whole analysis is assuming that Parliament – that, somehow, $25,000 is too low.  I am just not sure where that comes from, given that, with modern – clearly modern modes of communication were underlying this, that they should all be captured – part of that is recognising that you have your billionaire who wants to do it as the cost of doing business, but that is one extreme; others are that you have political parties, or candidates, or whatever, and there is an omission, and it ends up going, as you say – because it is somehow in the AFL, or whatever – to 3 million people.

You do then start to have what looks like circumstances where you can barely even estimate what the true maximum penalty is, given the number of contraventions – that all starts to become a bit meaningless as well.  Why do we assume that the $25,000 for the act to one person is somehow insufficient, given the business is politics, not the making of profit?  I am just not sure where the idea comes from, that it is too low to cover the potential spectrum, particularly given the fact of being found to have contravened a civil penalty in a – of the very Act that regulates political endeavours like these.  That would be a pretty serious thing for a political party, candidate, whatever, in and of itself, irrespective of what is imposed on it.

MR BEGBIE:   As it no doubt is for a large company like Reckitt Benckiser, and we do not quarrel with that, your Honour, with respect, but what we do say is that the kind of example I have given is a realistic and obvious example for Parliament to have had in mind.

An even more realistic example is what has in fact happened in the McQuestin Case.  In that case, penalties were imposed in respect of political advertisements placed by the Liberal Party of Victoria in the Geelong Advertiser.  They went to, collectively, tens of thousands of people.  One of those ads was an attack ad which did not allow you to see that it was in any way connected with the Liberal Party.  It went to thousands of people in the electorate that was of concern, in only the week before the election.

Now, the maximum penalty for conveying that, without disclosing who was conveying it, to thousands of people, in the days leading up to their vote, would be $25,000, on the appellant’s construction; on our construction, it would be the thousands of recipients times the $25,000, and, on our construction, a court would be able – not required, but able – to impose a penalty greater than $25,000 if it considered that to be the appropriate amount.  Following the Full Court’s decision in Laming, agreement was reached in an appeal in the McQuestin matter, which is currently reserved, which included agreement that the penalty for the contraventions arising from that attack ad was appropriately set at $80,000.

Now, I am, of course, not for a moment suggesting that those facts somehow feed back into the parliamentary decision‑making at the time it occurred, but they do illustrate a completely realistic real‑world scenario in which, in that case, even the respondent was agreeing that a penalty capped at $25,000 would be too low.

JAGOT J:   I mean, Mr McQuestin is an individual, happened to be the State Director of – I mean, I am just not sure it is too low, that is what I am – you know, this person has then been found to have contravened, a declaration is made against this person, has to pay the costs of the proceedings plus a penalty.  Anyway, I am just not sure it strikes me as too low for ‑ ‑ ‑ 

GAGELER CJ:   You cannot point to any parliamentary consideration that assists your argument here, can you?

MR BEGBIE:   Does your Honour mean in extrinsic materials?

GAGELER CJ:   Yes.

MR BEGBIE:   Not of the kind that I am describing, no.

GAGELER CJ:   I am not sure that we can speculate about what is the right penalty.

JAGOT J:   I think that is my point, yes – put more briefly.

MR BEGBIE:   Yes.  No, I understand that.

GAGELER CJ:   Can I just ask you a very technical question, by reference to the text of subsection 321D(5), and just looking – I know we are concerned with item 4 in this case, but just let us look at item 1.

MR BEGBIE:   Yes, your Honour.

GAGELER CJ:   It applies if:

the communication is a sticker –

let us just stop at that.

MR BEGBIE:   Yes.

GAGELER CJ:   That looks to me like “the communication” is a thing.  Do you dispute that?

MR BEGBIE:   We say that insofar as “the communication” is a thing, it is a thing in its capacity as mediating an event, namely, the transmission of information to the person that is the subject of subsection (1).

GAGELER CJ:   Let me just take it a little further.  It then says, if:

the communication is a sticker –

then:

the following particulars are required –

Are those things that have to be put on the sticker?

MR BEGBIE:   In the context of a sticker, they would be, yes.

GAGELER CJ:   They cannot be part of some broader communication with the person who might be looking at the sticker?

MR BEGBIE:   Well, this gets us back to those exceptions, for example, like the communication is to a person known to you, and those sorts of things.  So, those types of things aside, it would be on the sticker itself.

GAGELER CJ:   I think – my own initial reading of this is it is really very simple:  “the communication” is a thing, and the thing has to contain certain stuff.  I mean, that is what it seems to be saying.  You are making it far more complicated than that.

MR BEGBIE:   I am sorry, your Honour, I was not intending to.

JAGOT J:   There is another – that is (5), but (5) only bites – well, the section as a whole only applies if one is satisfied – so that, for example, if the person – I do not know – sticks the sticker on and then rips it off their car before they go driving, it is all irrelevant, because nobody could ever see it.  But it still suggests you could start with (5), work out whether (5) is engaged, and then go back and work out whether (1) applies at all, which just requires, as the appellant would have it, one act of communication will get you there.

GLEESON J:   The communication cannot be nothing more than a sticker.  It must be a communication – a sticker – that includes electoral matter.  It seems to me that the question is whether or not the communication is the communication of electoral matter to a person.

MR BEGBIE:   That is what we would say and, to come back to your Honour Justice Gageler’s question about item 1, for example, it immediately goes on to take about what was authorised by a disclosure entity, and when you go to the definition of “authorises”, you see it is speaking of the authorisation of that event of communicating electoral matter.  So, to pick up what your Honour Justice Gleeson is saying, that is built into the provision necessarily.  It has to be.  There is no other sensible way of reading the definition of “authorises”.

GORDON J:   After the morning break, could you just identify the distinction, if there is to be drawn any, between subsections (a) and (b) of the definition of “authorises”, on the impact on the argument, because (a) is:

the person approves . . . or

(b)otherwise—the person communicates –

I could not quite work out whether that had any impact upon the argument you put.

MR BEGBIE:   Yes, I will do that.

GAGELER CJ:   We will take the morning adjournment.  Thank you, Mr Begbie.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

MR BEGBIE:   Your Honour Justice Gordon’s question is a useful starting point for the submission I would like to develop now about the way the language is used in the Act.  We start with “authorises”.  If your Honour looks at the chapeau, you see the collocation of the word “communication” and the words “electoral matter”.  That is a collocation I will come back to, but it exists throughout the Act with almost unerring consistency.  I say “almost” because I have to come back to your Honour the Chief Justice’s question about the way the communication is used in the table at subsection (5).

But when you see that collocation, as you do in the chapeau, you know very clearly that “the communication” is the event or the action and the “electoral matter” is the thing that is the subject of that event or action.  It makes no sense unless you read it that way.  That controls both subsection (a) and subsection (b) of this definition, so, when it says: 

a person authorises the communication –

it is saying a person authorises the transmission “of electoral matter” to another person if one or two things exist.  The first, in (a), is that: 

the matter –

the thing:

is communicated –

and the person has approved the content of the electoral matter “before” that event.  Then, (b) does not require prior approval; the authorisation happens upon the event of the matter being communicated, or upon the communication of the electoral matter.

That is the way in which the word “communication” – I will come back, of course, to the table in subsection (5) – but that is the way in which the concepts of “communication”, “communicate” and “communicated” exist through the Act.  The point of our list – and perhaps this will assist your Honour the Chief Justice to understand why I have inadvertently made it complicated, I do not ultimately ‑ ‑ ‑

GAGELER CJ:   No, no, it was not a criticism – it is perhaps my lack of appreciation of the scope of your argument.

MR BEGBIE:   I am grateful, your Honour.  What I hope to do is just explain why what we are doing with this construction is saying there is a coherent way in which the concept of communicating is used throughout the Act as a whole, and that it is entirely consistent with that, and entirely consistent with ordinary principles of statutory construction, to read the table in subsection (5) in that light.  That is the punchline.

If you look at our oral outline at paragraph 6, we have a large list of sections which illustrate the point I have just been making, the collocation of the word “communicate” with the thing – which is the electoral matter – that is the subject of the communication.  I want to go to only two of those before coming directly back to Part XXA.

The first, your Honours have already looked at, it is section 4AA.  What I am doing now, of course, is not seeking an explication of the entirety of section 4AA, but making a narrow point, which is identifying for your Honours that in each subsection, “communication” and “electoral matter” are collocated in the ways I have just explained in the definition of “authorises”.  Subsection 4AA(1):

Electoral matter means matter communicated –

the thing and the action.  Subsection (2):

each creation, recreation, communication or recommunication of matter –

the action and the subject of that action.  Subsection (3), in the chapeau:

communication or intended communication of matter –

and so on, you see it in the chapeau to subsection (4), in the chapeau to (5), and I will not go through each of the paragraphs, you get the idea.  That is what “communicate” means, and when matter has been communicated, grammatically, you refer to that as “the communication”.  It is quite simple, in our submission.

If your Honours then go to 287AB, which is on page 39 of the joint bundle, but your Honours might be working from different versions, this is the central definition provision for Part XX of the Commonwealth Electoral Act which deals with election funding and financial disclosure.  Can I say, before turning to the text of the provision here, that this entire Part of the Act denies our learned friend’s submission that electoral communication has nothing to do with economics, as do, we would add, cases like McCloy and the unions cases, which well illustrates how people’s investment in electoral communication can be a significant economic matter.  How is that dealt with in this Part?  It is dealt with, in the definition of “electoral expenditure”, by tying it to exactly the same idea:

creating or communicating electoral matter –

the event and the thing, and you see that in the chapeau, you see it in paragraph (b)(i) and paragraph (b)(ii), and subsection (2).  So, wherever in Part XX of the Act there is a reference to “electoral expenditure”, it is picking up that statutory conception that we have explained, the collocation.  Additionally, Part XX picks that same collocation up time and time again.  I will not go to the provisions; they are the provisions listed in our oral outline, but you will see that that is what Parliament is doing consistently, right throughout the Act, up to the point we get to at Part XXA, which is where 321D resides.

MR FERRETT:   Yes, this is – we are in a universe purely of deterrence, but the proposition that there are penalties – or that penalties are fixed on the basis – sorry, let me take that back.  The proposition that you should interpret this statute differently, despite the Parliament having deliberately set a maximum penalty, because the maximum penalty that Parliament has set will not catch everyone that we would like to catch, because some people will see it as an acceptable risk, does not deal with the underlying point that Parliament has set a maximum penalty.  It is really to put the cart before the horse.

Can I come back to a submission made by our learned friends in the course of oral presentation to the effect that we have been at pains, in our submissions, to separate subsections (1) and (5).  In our respectful submission, that is what the legislature has done by the way it has structured its provision.  And it leads into another submission that was made, which is that – to use our learned friend’s words – with almost unerring consistency, the concept of communication, or the word “communication” and its different grammatical forms have been used in a particular way.

But the one place where it has not been used in that verbal way – not to get into too heavily distinguishing between verbs and gerunds – the one place where it has not been used that way is section 321D in subsection (5), because, as your Honour the Chief Justice points out, the way that the odd‑numbered line items are set out are by referring to a thing which contains stuff.  It uses it as a noun, undoubtedly, in the odd‑numbered line items.  What our learned friends do not really explain is why, as a matter of construction, you would interpret the word “communication” differently depending on whether it is an odd‑numbered line item or an even‑numbered line item in the table in subsection (5).

Can I just then respond to the point that was made against us about what was a perceived misunderstanding of what Justice Isaacs had to say in Smith v Oldham.  We do not deny that every voter has an interest in their own franchise; what we do deny is that there is any opportunity to vindicate it through section 321D.  It is plain that it is obviously the case that only the Electoral Commissioner gets to do that, and what the Electoral Commissioner is doing, in enforcing section 321D, is enforcing that public interest which encompasses the interest of every voter.

Can I then say something about the extrinsic materials.  What they demonstrate is that there was an intention or an effort to bring the Commonwealth Electoral Act into modern times, rather than to change the manner in which authorisation was to occur or the concept of authorisation and when it occurs.  That appears, for example, if I can take your Honours in the JSCEM report, which is at page – if I can take your Honours to page 1168 in the joint book of authorities, in volume 5.

What we see at page 1168 is some observations about the context in which the reforms were thought to be necessary.  Those repeat, particularly at paragraphs 1.6, 1.8 and 1.9, the sorts of considerations that are identified in Smith v Oldham.  And if then one goes over the page, to 1171, one sees that, at paragraph 1.22:

The Committee notes that several strong themes emerged in the evidence provided, suggesting first that legislation should be amended to meet new needs, and second, that effective regulation should meet three principles –

None of that is to say:  we want to fundamentally change the concepts that were in play, already in place, for authorisation of what you might call legacy media.  What they were aiming to do, in our respectful submission, was just to ensure that new media were regulated in the same way, that the same responsibilities were accepted for messages published via Twitter or Facebook as they were for a sticker or a fridge magnet, even if those were not entirely encompassed in the old section 328.

Can I just take you finally, within the report, over to page 1173, and just ask your Honours to note what is said at paragraphs 2.1 through to 2.4, including what was raised by the Commissioner himself.  Really, just to underline that point I was making, that what you will not find anywhere in the extrinsic material is some will, fundamentally, to change the way authorisation or failure to observe an obligation to authorise – so, failure to observe an obligation to notify the authorising particulars was meant, fundamentally, to be changed, just because new media was being taken into account in the new legislation.

Now, our learned friend – I think in discussion with your Honour Justice Gordon – was discussing the example of the corflute on the side of the house, whether it gets taken up or whether it gets taken down, comparing that to fridge magnets.  He made the point – well, he asserted that you do not get out of the blocks on the fridge magnet example because, by that stage, it is someone else who is communicating it, because they have stuck it on the fridge.

But, if that logic is right, then when you stick the corflute on your front fence, you are the person communicating it and not the person who was the notifying entity.  So, it will still be a communication – so, the communication by the person – the notifying entity – and the responsibilities and, therefore, the absurdities that we have pointed to, do apply, in our respectful submission.

Your Honour Justice Edelman suggested to me, I think, in argument in the first place, that there will not be any difference between the two scenarios of a single contravention as opposed to multiple contraventions when one takes into account the course of conduct principle.  But, of course, the reason there was an appeal to the Full Court is because the assessment of penalty was thought to be too light at first instance because the alternative of multiple contraventions was not taken into account, and then the Full Court imposed a much larger penalty as a result.

So, whether or not, conceptually, that is right, at a practical level it has had an effect.  And that must be the case, on reflection, because what the cases tell us about the civil penalty regime is that the maximum penalty is a yardstick, and if the maximum penalty is higher because there are multiple contraventions, that is always going to be part of the yardstick that is applied in the penalty analysis, taking into account, of course, what Justice French said in CSR.  A point was made to the effect that ‑ ‑ ‑ 

EDELMAN J:   Is there – I appreciate the possibility of some slight difference in penalty calculation, even with the course of conduct principle, but even at the level of the contravention, is there any difference in most of the mass communication media between your position and the respondent?  In other words, is it really right to say that when an SMS, for example, or voice calls are sent out to thousands of people, there is really only – even on your submission – one communication?  The nature of the way the electronic media is working is that there is, and must be intended to be, thousands of communications, must there not?

MR FERRETT:   We are getting into the distinction between – the distinction that our learned friends draw between the event and the message – or the mediating – or the medium, I suppose.

EDELMAN J:   Just take your – on your submission, why is there not a thousand different single events of “a communication” when an SMS is bulk‑sent to a thousand people?

MR FERRETT:   It takes an analysis of the technology – this is not to dodge your question; it is only to say that I am doing it on the basis of my understanding of the technology, rather than an expert understanding of the technology – but it must be the case ‑ ‑ ‑

EDELMAN J:   But that is this case – this case raises that as well, because it is the technology behind Facebook posts, as well.

MR FERRETT:   Yes and no.  There are differences between the various media.  If I send a text to 10 people, I punch 10 different phone numbers or contact details into my phone to send it.  At a macro level, with campaigning, there will be other technology that does it.  I do something once; there are 10 separate messages out in the aether, because they do land on 10 separate phones.  I accept that.

Facebook is a bit different, because when you upload it there is an event involving uploading it and an event when X number of people, out of the uploader’s control, look at that subsequently.  The best you can say in that scenario is that the person who is uploading it, particularly if they are savvy about social media, will have an idea of the number of people who might look at it.  That is best you can say about it.

But it is out of their control how many may look at it, and that sort of comes back to the point about whether what Parliament really meant was to make people liable for circumstances, which are entirely out of their control, to vastly raise the possible maximum penalty.  Those two distinctions between social media and SMS technology or email technology demonstrate how difficult it would be to parse those things.

Unless there is anything else, that brings me neatly to another point that is raised against us, which is that there is an absurdity, perhaps – our learned friend Mr Begbie ultimately did not like the word “absurdity”, but he accepted, perhaps, if I can put it more neutrally, that there are anomalies with respect to what a regulator has to do to prove the contraventions en masse.  One of the things, starkly, on his analysis, that the regulators would have to prove is receipt by each of the persons who are the subject of the communication.

To adopt what Justice Perry says, and say that you can infer those things, it may be right, maybe you can prove up a circumstantial case from time to time, en masse.  Certainly, you could do what your Honour Justice Jagot acknowledged in the Reckitt Case on appeal, which is to say there must have been at least 5.9 million contraventions.  The likelihood that the Parliament intended that the regulator should have to go out, to establish a contravention, to find every person who had received it – if they had driven past a billboard on a main road, you would have to find the

people who had driven past it and seen it; people who had driven past a corflute on a street, you would have to drive past, and see, and find them and get them in to prove that they saw it.

Those things are not just problems for the regulator, as our learned friends tried to comfort the Court, they are things which make it unlikely that that was what Parliament intended, because it is an unlikely construction.  That brings me to the suggestion that the characterisation of our learned friend’s argument as a bigger penalty is always a better penalty is nothing more than a straw man.

Can I ask your Honours to go to Justice Perry’s reasons in the Full Court; you will see this in the core appeal book, if I can take your Honours to page 120 and to paragraph 101.  What her Honour says there is that:

Mr Laming’s construction would have the result that the same maximum penalty of $25,200 for a natural person would apply irrespective of whether or not the communication was, for example, to one person or 500,000 electors –

Skipping over the parenthetical there:

While Mr Laming submits that such different scenarios might be accommodated on his construction in the assessment of the appropriate civil penalty, the construction is a highly unlikely one.  In particular, it is difficult to reconcile that construction with the primary purpose of the civil penalty regime, being general and specific deterrence.

This comes back to the billionaire point that our learned friends make.  An individual might well consider that the payment of the maximum penalty would be a small price to pay for the publication of a post on social media. 

So, that is a passage of the judgement which our learned friends expressly support in their written outline, because when we criticise it, they say none of our criticisms of Justice Perry’s reasons are made good.  That argument is a statement that the construction for which our learned friends contend is more likely because you will get bigger penalties that way.

Subject to any questions the Court has, those are our submissions. Thank you.

GAGELER CJ:   Thank you, Mr Ferrett.  The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.

AT 12.48 PM THE MATTER WAS ADJOURNED