11th Sep 2017, 11:47 AM – Senate Electoral and Other Legislation Amendment Bill 2017 - in Committee - Misleading statements

The majority voted against an amendment introduced by Victorian Senator Richard Di Natale (Greens), which means it failed.

What did this amendment do?

Senator Di Natale explained that:

This amendment creates an offence for any election advertisement which includes a statement that purports to be a fact but is misleading to a material extent. It effectively prohibits any advertisement that is wrong in fact. Under this amendment, we would have the Electoral Commissioner make an application to the Federal Court to grant an injunction to withdraw the advertisement from further publication and/or to publish a retraction. It's very straightforward: if someone makes a statement that is simply wrong in fact, rather than saying, 'You've got to put your name to it,' which is what the bill currently does, we're saying you shouldn't be able to make a statement that is wrong in fact.

Amendment text

(1) Schedule 1, item 11, page 15 (lines 29 and 30), omit the item, substitute:

11 Sections 328 and 328B

Repeal the sections, substitute:

328 Inaccurate or misleading advertising

(1) This section applies in relation to electoral matter if all of the following apply:

(a) the matter is an electoral advertisement;

(b) all or part of the distribution or production of the advertisement was paid for;

(c) the content of the advertisement was approved by a person (the notifying entity) (whether or not that person is a person who paid for the distribution or production of the advertisement).

(2) The notifying entity commits an offence if:

(a) the notifying entity publishes, or causes to be published, an electoral advertisement; and

(b) the advertisement contains a statement purporting to be a statement of fact that is inaccurate or misleading to a material extent.

Penalty: 24 penalty units.

(3) Subsection (1) does not apply if the notifying entity could not reasonably be expected to have known that the statement was inaccurate or misleading.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

(4) Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (2).