Electoral commission appeal pushes for increase to mayoral candidate Andrew Laming’s $20,000 fines for Facebook posts

A court will determine whether to increase or decrease $20,000 in fines for breaches to the Electoral Act for Redland mayoral candidate Andrew Laming.

The electoral watchdog has contested three fines for Electoral Act breaches by ex-federal MP Andrew Laming who is running as a mayoral candidate in Redland.

The Australian Electoral Commission has launched an appeal in the Federal Court claiming a $20,000 fine issued to Redland mayoral hopeful Andrew Laming was inadequate after he was found to have breached the Commonwealth Electoral Act in three Facebook posts.

The commission is appealing an August Federal Court decision which resulted in Mr Laming being fined $20,000 for three Facebook posts which it claimed breached the federal Act in 2018 and 2019.

The commission took its appeal to the Federal Court on Monday, claiming the three breaches amounted to more because Facebook posts can be shared.

In August, Federal Court Justice Darryl Rangiah KC fined Mr Laming $10,000 for a “serious” post on the “Redland Hospital: Let’s fight for fair funding” page made in December 2018, and $5000 each for two others made in February and March 2019.

The maximum penalty for a breach of the Act is $25,000.

Justice Rangiah found the Facebook page had “effectively concealed that Mr Laming was its administrator” and there was a “deliberate attempt to conceal that Mr Laming was the author” of a contravening post.

The commission, in its notice of appeal, said the primary judge “erred in determining the fines by erroneously proceeding on the basis that Mr Laming had committed only three contraventions … rather than 28 separate contraventions being the number of times posts containing electoral matter were communicated to a person”.

The commission said that there were six breaches in December 2018, eight in respect of a post on February 7, 2019 and 14 in respect of a post on May 5, 2019.

The court heard that one of the posts was viewed by 10 people and was later shared on nine occasions.

Acting for the AEC, barrister Tim Begbie KC said the Electoral Commissioner had no objections to the primary judge’s penalty analysis except for “getting the number of contraventions wrong as a matter of construction and therefore the maximum penalty wrong,” Mr Begbie told the court.

Barrister Tim Begbie KC represented the Australian Electoral Commission.

“It is unknown how many persons may have seen the post as a result of the post being shared.”

Mr Begbie said Mr Laming had control over where he made his comments and whether to take the post down or to change the post.

He said Facebook was a platform known for comments to be “picked up and reposted”.

The court also heard statistics from a report, compiled by Mr Laming, which indicated that 509 users liked the page and it had 522 followers.

Mr Laming’s barrister Jules Moxon disagreed with the AEC argument and told the court that there was only one breach of the Electoral Act for each post and that the penalties imposed were for “lower level” contraventions.

Mr Laming’s lawyer Jules Moxon.

He said the posts were only seen by between six and 14 people and did not occur in an organised or systemic manner and it was unfair to hypothesise about Mr Laming’s motivation in making the posts.

Mr Moxon also said “there was no suggestion that Mr Laming had previously engaged in similar conduct and no suggestion of loss or damage to anyone”.

He told the court that the $20,000 penalties should be lower, taking into account the costs awarded against Mr Laming.

A November ruling in which Mr Laming was ordered to pay 60 per cent of the Australian Electoral Commission’s legal costs in the case meant “that it was manifestly excessive to impose any civil penalty”, Mr Moxon told the court.

“Having regard to the findings that were made and the circumstances of the contraventions, there is a need to take costs into account,” he said.

All payments of costs were put on hold while Mr Laming appealed the findings and the AEC’s claims.

Federal Court judge John Moxon.

The AEC lodged its appeal on September 6, with Mr Laming lodging his cross appeal on September 12.

Federal Court judges Justice John Logan and Justice Melissa Perry listened to arguments from both sides before adjourning the matter.

The commission was ordered to file and serve a revised draft of the orders they seek by Wednesday.

Mr Laming has been directed to file and serve a draft of the orders he says should be made by Friday.

Originally published as Electoral commission appeal pushes for increase to mayoral candidate Andrew Laming’s $20,000 fines for Facebook posts