The First Post: 24 December 2018
129 Before directly considering the First Post, it is relevant to consider the Facebook Page as a whole.
130 The Facebook Page was entitled, "Redland Hospital: Let's fight for fair funding". The "About" section of the Facebook Page stated, "This page supports Andrew Laming's efforts to reveal funding for Redlands Hospital. Do you support the push for honesty?". The language suggests that government funding of the Redland Hospital was unfair, in the sense of being inadequate, and that the underfunding was being hidden by government. The aim was said to be to support Mr Laming's efforts to reveal the underfunding. On its face, that was the purpose of the Facebook Page.
131 Mr Laming admits that he was the "administrator" of the Facebook Page, and that he made the Five Posts. The Facebook Page did not disclose that Mr Laming was its administrator.
132 The Facebook Page was accessible to the public. Anyone with a Facebook account could choose to view or follow the Page. The posts made on the Facebook Page were also accessible to followers and other members of the public with Facebook profiles.
133 Mr Laming was elected as a member of the House of Representatives at the federal election held in 2016. He represented the electoral division of Bowman, which encompasses part of Redland City and part of the Brisbane City within Queensland, including the suburbs of Wellington Point, Cleveland, Victoria Point and Redland Bay.
134 The Facebook Page operated from 14 August 2018 to 9 March 2022. I infer that Mr Laming understood that many of the persons who accessed or followed the Facebook Page, or who were likely to do so, would have an interest in the Redland Hospital as local residents. As Mr Laming's counsel accepted, "people who have an interest in their local hospital, in a local area, are always concerned…that it's being funded properly". Mr Laming must also have understood that many such people were likely to be electors in the electoral division of Bowman, which encompassed part of Redland City.
135 Mr Laming became a candidate for the Liberal National Party of Queensland in the federal election held on 18 May 2019. The election was not announced until April 2019, well after the first four Posts had been made.
136 Under s 28 of the Constitution, the House of Representatives has a maximum term of three years. I infer that at the times the Five Posts were made, it was well known amongst the public that a federal election had been held in 2016 and another had to be held during 2019. I also infer that Mr Laming knew that a federal election was to be held during 2019.
137 A total of 232 posts were made on the Facebook Page between 14 August 2018 to 9 March 2022, so that some posts were made before and some after the May 2019 federal election. It is evident from their content that some of the posts on the Page were made by Mr Laming. For example, a post made on 19 December 2018, contains a letter to a journalist signed "Andrew" and is identifiable as having been written by Mr Laming, and he commented on another comment under his own name on 26 December 2018. A post made on 14 January 2019 (after the First Post, but before the remainder of the Five Posts), stated:
Labor in a lather, calling this a fake page. Apparently none of us are real. Read the "About" tab which make it clear that Andrew Laming was involved in establishing this page and maintaining it. So what! We just want our $39 million back.
138 It is an agreed fact that the majority of the posts made by Mr Laming to the Facebook Page did not communicate "electoral matter", and that those posts generally related to the "political issue" of funding the Redland Hospital, including criticism of the Queensland Labor government.
139 The First Post was made on 24 December 2018. It stated:
We are working so hard to sort out Redland Hospital funding, and we were delighted when Andrew Laming announced an $83million dollar funding boost to our local hospital service in the latest financial year (17/18). Well let's FACT CHECK. Turns out he wasn't entirely correct. One of our spies found Queensland National Health Reform Funding - and it tells a different story. We cant reproduce it, but the statewide table shows that indeed 7.8% of the 2017/18 money was from previous years. So Laming is 92.2% accurate if State data reflects Redlands and he boosted funding by $77million.
140 Although Mr Laming wrote and posted the First Post, it does not identify him as the writer and publisher. In fact, it is evident from the Post that Mr Laming was pretending it was posted by someone else. That is made plain by Mr Laming's use of the words "we" and "our" in reference to the author of the post, and his reference to "Andrew Laming" in the third person. That is consistent with the "About" page, which also refers to Mr Laming in the third person and failed to reveal that he was in fact the administrator of the Facebook Page.
141 The First Post indicates that its author was delighted by Mr Laming's announcement of an $83 million funding boost in funding for the local hospital service, presumably Redland Hospital, in the latest financial year. The author then purports to "fact check" that announcement, concluding that Mr Laming was, "92.2% accurate", in the sense that, "he boosted funding by $77 million". It seems to be a case of praising through faint criticism. In effect, Mr Laming, while pretending the post was made by someone else, purports to check the accuracy of his own claim, and concludes that while he did not boost funding by $83 million, he did boost funding by $77 million. His conduct brings to mind the observation of Griffith CJ in Smith v Oldham (Chief Electoral Officer for the Commonwealth) (1912) 15 CLR 355 at 358 that the weight attributed by the electors to printed articles, "may be greater or less than would be attributed to those articles if the electors knew the real authors". I infer Mr Laming thought that by pretending the post was written by someone else, his self-flattery is more likely to be accepted by viewers as true and his achievement admirable.
142 I will begin by considering whether the First Post attracts the presumption under s 4AA(3).
143 There is no doubt that Mr Laming's making of the First Post involved the communication of "matter".
144 Through the deception practiced by Mr Laming, the First Post, on its face, seems to carry faint criticism, as well as praise of him. While the First Post certainly operates to promote Mr Laming, it does so principally by implication. When the First Post is considered as a whole, I find that it does not expressly promote Mr Laming. Therefore, the presumption provided for in s 4AA(3) does not apply to the First Post.
145 In case I am wrong, I will consider the requirement that the First Post "relates to" a federal election, namely the May 2019 election. That issue must be considered objectively, and not by reference to Mr Laming's subjective purpose.
146 It is well known that many politicians intending to stand for re-election engage in self-promotion or promotion of their political party aimed at persuading electors to vote for them. However, s 4AA(3) does not treat every act of every promotion or self-promotion of a member of the House of Representatives or a Senator as one that "relates to" an election. Otherwise, there would have been no need to specifically include that requirement.
147 The Commissioner submits that s 4AA(4) requires the Court to take into account the factors set out in that provision in determining whether, for the purposes of s 4AA(3), "the matter relates to a federal election". That submission cannot be accepted since the language of s 4AA(4) plainly indicates that it applies to the determination of the dominant purpose under s 4AA(1). It does not apply in determining whether the presumption under s 4AA(3) arises. However, it can be accepted that, in a particular case, factors set out in s 4AA(4) may well be relevant to determining whether the matter communicated relates to a federal election.
148 The First Post does not mention any election. It was made on 24 December 2018, at a time when the May 2019 election had not yet been announced, and when an election was not in distinct prospect in the near future. I accept that the stated aim of the Facebook Page, namely to support Mr Laming's efforts to reveal the underfunding of the Redland Hospital by government, concerned a political issue. The substantial content of the Page, namely criticisms of the Queensland Labor government's funding of the Hospital, also involved political issues. While the First Post must be understood in the context of that setting, I do not consider that every communication of political nature can necessarily be regarded as one that "relates to" an election.
149 The most that can be said is that the First Post was made at a time when an election was in prospect within a period of some months, it concerned a political issue and promoted a member of the House of Representatives. In my opinion, those matters do not allow it to be concluded that the communication of the First Post, objectively, "relates to a federal election".
150 In these circumstances, the presumption under s 4AA(3) is not engaged in respect of the First Post. It is necessary to determine whether the First Post is "electoral matter" within s 4AA(1) without the aid of the presumption.
151 Section 4AA(1) defines "electoral matter" as, relevantly, "matter communicated...for the dominant purpose of influencing the way electors vote in an election…of a member of the House of Representatives or of Senators for a State or Territory". The provision includes the promotion or opposition of a political entity to the extent that the matter relates to a federal election or a member of the House of Representatives or a Senator.
152 In contradistinction to s 4AA(3), s 4AA(1) does not require any promotion or opposition, or the influencing of electors, to be express. That is made abundantly clear by s 4AA(4)(c) which requires consideration of whether the matter contains, "an express or implicit comment". The matters specified in s 4AA(4) must be taken into account.
153 The Commissioner's case is that Mr Laming's dominant purpose in making the First Post was to influence electors to vote for him in the federal election anticipated to be held in 2019.
154 It is important to remember that s 4AA(1) is concerned with Mr Laming's actual purpose or purposes. As Mr Laming did not give evidence, his actual purpose or purposes in making the First Post can only be inferred from the established factual circumstances. The relevant circumstances include the content of the First Post in the context of the Facebook Page as a whole and Mr Laming's state of knowledge about matters including the timing of the next federal election.
155 The substantial Commonwealth government funding boost for the Redland Hospital was clearly a matter that would be of considerable interest to viewers and followers of the Facebook Page. I readily accept that one of Mr Laming's purposes in making the First Post was to disseminate information to such persons.
156 There is no doubt that another purpose of Mr Laming in making the First Post was to promote himself. That can be seen from his deception in pretending the First Post was made by someone else and its content. It praised him for obtaining the boost in funding while pretending to be objective. I am persuaded by the lengths he went to in perpetrating the deception that his predominant purpose was self-promotion. If his predominant purpose was to communicate the funding boost, he would have done so without the deception.
157 However, that conclusion only goes part of the way to determining whether the dominant purpose of Mr Laming's communication of the First Post was to influence electors to vote for him in an election. As I have observed, the First Post does not mention any election and was made at a time when the federal election had not yet been announced. However, when he made the First Post, Mr Laming must have known that an election had to be held in 2019. I infer that he knew that he would be, or at least was likely to be, a candidate in the forthcoming election for the electoral division of Bowman. I draw that inference from the fact that he was then the sitting member for Bowman at the date of the First Post on 24 December 2018 and he then became a candidate for the same electorate in the May 2019 election.
158 Mr Laming posted the First Post on the Facebook Page. The Facebook Page was concerned with what is admitted to be a "political issue", namely Mr Laming's efforts to reveal the underfunding of the Redland Hospital by the Queensland Labor government. In that context, the First Post, which dealt with a funding boost for the Redland Hospital by the Commonwealth government, of which Mr Laming was part, was substantially political in nature. That funding boost was implied to have been secured by Mr Laming as a member of the House of Representatives. There is an obvious relationship between the political issues arising in an electorate and the outcome of any forthcoming election. The political issue raised in the First Post had a clear relevance to whom electors should vote for as the representative for Bowman in the next federal election.
159 The Facebook Page and the posts it contained were accessible to members of the public. The topic of the Facebook Page (funding of the Redland Hospital) must principally have been of interest to persons living in the local area, including within the electoral division of Bowman.
160 The First Post was in a sense solicited and, in another sense, unsolicited. The Facebook Page was accessed by members of the public with Facebook profiles clicking on it, and some persons also chose to become followers. In that sense, they solicited, or were willing to be exposed to, whatever posts were on the Page. However, the Facebook Page did not disclose, and in fact effectively concealed, that Mr Laming was its administrator. In that sense, a person accessing the Facebook Page, could not know that many of the posts, including the First Post, were made by Mr Laming.
161 The political nature of the First Post made by Mr Laming cannot be divorced from the fact that he knew an election would be held during 2019 and that he knew that he would be, or was at least likely to be, a candidate for the House of Representatives in that election. In that context, Mr Laming's self-promotion through the First Post cannot be considered to be purely for egoistical or some other private or personal purposes unrelated to politics. While I accept that one purpose of making the First Post was to provide information to members of the public, I am satisfied that Mr Laming's dominant purpose was to influence electors to vote for him in the federal election he knew would be held in the following year.
162 I find that the First Post was matter communicated for the dominant purpose of influencing the way electors vote in an election of a member of the House of Representatives and is accordingly within the definition of "electoral matter" in s 4AA(1).