Power, Penalties and Fairness: When One Post Counts Once
Home › Case Studies › Electoral Law › Civil Penalties › Laming v Electoral Commissioner of the Australian Electoral Commission [2025] HCA 31
Published: 19 November 2025 | Reviewed: 19 November 2025
(3-minute read)
Many clients worry that when regulators investigate online conduct, the number of views or interactions might expand the financial risk in ways they cannot predict. That concern is natural, platform metrics can feel disconnected from legal responsibility. This case shows why clarity on statutory penalties matters for the decisions you may later need to make.
Case Summary
In Laming v Electoral Commissioner of the Australian Electoral Commission [2025] HCA 31, the High Court considered how to calculate civil penalties for a candidate who published an electoral communication without the required authorisation under s 321D of the Commonwealth Electoral Act 1918.
The statutory question was whether a breach occurs each time a person views the communication, or whether the breach is complete at the moment of posting. The Court held that contraventions do not multiply with each view. As the Court explained, the offence occurs when a person
“disseminates… the communication to the public or a section of the public”
under s 321D(5), a single act completed when the post is published.
The Court reinstated the trial judge’s approach: one post, one contravention.
Risk Classification
In-litigation risk - cost-incentive failure arising from penalty escalation tied to digital dissemination.
Core Legal Risk Identification
The Court emphasised that statutory penalties must be tied to the conduct regulated, not to downstream interactions. The judgment confirms that multiplying penalties by views would be inconsistent with the legislative scheme. As the Court put it, the dissemination element occurs when the material is made available to the public, not each time it is opened.
For clients, the risk is practical:
regulatory proceedings involving digital content can create unpredictable cost exposure if penalty units escalate according to platform behaviour rather than actual conduct.
Under your safeguard rules, because this risk concerns cost-incentive failure, not independence or multi-party conflicts, the required safeguard is cost-alignment (one-path funding).
Default Structural Context
Clients often describe uncertainty about options, timing windows, cost exposure and whether a regulator’s interpretation will expand or narrow the dispute. Structural clarity, modelling pathways, budget impacts and decision points, helps them navigate this uncertainty without implying the underlying conduct could have been avoided.
Why It Still Matters
Online communications now form part of regulatory, compliance and public-law disputes across industries. When statutes regulate dissemination, the way tribunals interpret digital behaviour affects how exposure is measured. This case demonstrates that even a single act online can trigger a significant proceeding, but that downstream amplification is not always part of the legal analysis.
For organisations managing social media oversight, advertising compliance or public-facing disclosures, the judgment reinforces the need to understand which elements of online behaviour are legally relevant — and which are not.
How to Avoid the Same Trap
For this matter, the correct safeguard is cost-alignment (one-path funding).
Two lawyers often cost less than one - because you fund one path, not both.
Typical models charge for both settlement work and litigation preparation simultaneously. A safer structure separates the roles: the courtroom lawyer focuses on the litigation lane, while the client-side lawyer manages timing, settlement opportunities and budget oversight through escrow. This avoids duplicated funding when a dispute’s direction turns on statutory interpretation, as happened here, and helps clients maintain visibility before regulatory theories expand.
The Practical Lesson
Where digital conduct is regulated, the line between dissemination and engagement matters. Structuring funding around a single pathway allows clients to respond to statutory interpretation issues without carrying the cost of parallel preparation for both settlement and trial.
You can see how one-path funding, escrow safeguards and role separation operate in practice on our Two-Lawyer Collaboration & Escrow Oversight page.
To understand how independence is kept visible, no referral fees, ACNC governance and annual trust-account audits, visit our Independence page or book a confidential discussion.
By Nicky Wang
Principal Solicitor
Legal Liaison Ltd (trading as Clean Law)
Prepared in accordance with public-interest governance,
annual Law Society trust-account audits, and ACNC-reported standards.
Disclaimer: This page is intended to provide general information only and is not legal advice. The contents may not reflect the most current legal developments and do not take into account your individual circumstances. You should not act or refrain from acting on the basis of this information without obtaining legal advice tailored to your situation.
