|
senate vote 2017-09-11#4
Edited by
mackay staff
on
2023-10-20 12:21:39
|
Title
Bills — Electoral and Other Legislation Amendment Bill 2017; in Committee- Electoral and Other Legislation Amendment Bill 2017 - in Committee - Misleading statements
Description
<p class="speaker">Richard Di Natale</p><p>I move Australian Greens amendment (1) on sheet 8232 standing in my name:</p>-
- The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2017-09-11.26.1) introduced by Victorian Senator [Richard Di Natale](https://theyvoteforyou.org.au/people/senate/victoria/richard_di_natale) (Greens), which means it failed.
- ### What did this amendment do?
- Senator Di Natale [explained that](https://www.openaustralia.org.au/senate/?gid=2017-09-11.26.1):
- > *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).*
<p class="italic">(1) Schedule 1, item 11, page 15 (lines 29 and 30), omit the item, substitute:</p><p class="italic">11 Sections 328 and 328B</p><p class="italic">Repeal the sections, substitute:</p><p class="italic">328 Inaccurate or misleading advertising</p><p class="italic">(1) This section applies in relation to electoral matter if all of the following apply:</p><p class="italic">(a) the matter is an electoral advertisement;</p><p class="italic">(b) all or part of the distribution or production of the advertisement was paid for;</p><p class="italic">(c) the content of the advertisement was approved by a person (the <i>notifying entity</i>) (whether or not that person is a person who paid for the distribution or production of the advertisement).</p><p class="italic">(2) The notifying entity commits an offence if:</p><p class="italic">(a) the notifying entity publishes, or causes to be published, an electoral advertisement; and</p><p class="italic">(b) the advertisement contains a statement purporting to be a statement of fact that is inaccurate or misleading to a material extent.</p><p class="italic">Penalty: 24 penalty units.</p><p class="italic">(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.</p><p class="italic">Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the <i>Criminal Code</i>).</p><p class="italic">(4) Section 15.2 of the <i>Criminal Code </i>(extended geographical jurisdiction—category B) applies to an offence against subsection (2)<i>.</i></p><p>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.</p><p>The offence would result in 24 penalty units. That's about $5,040 for an individual and $25,200 for a body corporate. The penalty is immaterial when it comes to large organisations that can wear the penalty, but what is much more powerful is that the Federal Court could grant an injunction and have the advertisement withdrawn. That would make a very strong statement about what is appropriate during an election campaign. Of course, there are safeguards. It would be a defence if the defendant took no part in determining the content of the advertisement and could not reasonably be expected to have known that the statement to which the charge relates was inaccurate or misleading. It's also important to note that this approach already exists in South Australia. In the existing provision in section 113 of the Electoral Act in South Australia, there is an amendment that is very similar to this amendment.</p><p>Let's be clear here. What we are currently debating is changes to AEC Act that say, 'You can lie; you can put out statements that are wrong in fact; and you can continue to mislead the Australian community. You can do all of those things. What we're going to do, though, is just make sure that you put your name to those lies.' Well, hit me with a wet piece of lettuce! Really! On the back of what have been some outrageous lies told during election campaigns, that is what we're debating here today: 'We just want to make sure that the authorisation of those lies is appropriate.' Let's not skirt around the edges. Let's recognise we've got a problem and let's fix it. Let's recognise that we do need some honesty during election campaigns and we do need people to be held to account. This amendment just ensures that publishers of political material don't mislead people on matters of fact, in contrast to what we've got at the moment, which is simply having somebody's name added to an electoral advertisement.</p><p>Some people will say that it's not the role of AEC to make those adjudications, but we think it's absolutely the role of an independent arbiter. Where there has been a lie told and a statement made that is factually incorrect, which may have a bearing on the outcome of an election, that lie should be corrected. It is absolutely critical in an environment where we are seeing political parties continue to engage in deceptive election campaigns, and where statements with no grounding in fact can influence the outcome of those election campaigns, that we have a process that ensures that we have some honesty and have people held to account. It's got nothing to do with free speech; it's got everything to do with ensuring that people don't believe they have a right to make statements that are untrue in election advertising during election campaigns.</p><p>So we recommend this amendment. We think that it goes further than where the existing legislation goes. We have for many, many years argued for some form of truth in advertising legislation. It has been legislation put to the parliament by my predecessors, Senator Bob Brown and Senator Christine Milne. We continue to advocate for truth-in-advertising provisions. This is the time for us to ensure that we get strong protections in law during election campaigns so that advertisements have to be factually correct.</p> <p class="speaker">Mathias Cormann</p><p>The government will not be supporting this amendment and we appreciate the opposition indicating through Senator Farrell that the opposition will not be supporting this amendment either. What Senator Di Natale describes as very straightforward is, of course, nothing of the sort. In any democratic process, what is wrong or right in fact is very often a matter of opinion, and the ultimate judges of whether one opinion should prevail as opposed to the other are, of course, the Australian people. That is what elections and democratic processes are all about. We trust the Australian people to be able to pass these judgements. In the end, if somebody puts forward a proposition which is wrong in fact, there will, no doubt, be others involved in this democratic exercise pointing that out. The Australian people will have the benefit of various sides of the argument putting their propositions, and ultimately the Australian people will make a judgement.</p><p>This is of course not a matter that is in any way related to the authorisation of electoral communications, which is what this bill is all about. The Australian parliament hasn't in the past gone down the path of seeking to regulate the content of political advertisements. We don't believe that it is desirable to do so at this point in time, and we will not be supporting this amendment.</p> <p class="speaker">Richard Di Natale</p><p>In fact, there are parliaments in Australia that have precisely this form of amendment. As I said, this amendment is based on the existing provision in section 113 of the Electoral Act in South Australia. Where that's been used in South Australia, the exercise of that provision has been done in a very limited way. It hasn't impacted on freedom of speech in those jurisdictions. We know that the existence of that legislation actually serves in some ways as a handbrake on false and misleading information. So we would commend this truth in advertising amendment. We would argue that it is not appropriate, and in no way is going to make any significant difference, to simply ask that somebody who advertises during an election campaign puts their name to it. We already know that that exists in practice and in law. This extends those provisions a little further but won't do what is intended to be done, and that is ensure that people are held to account.</p><p>We will argue, as we have for many, many years, that it is appropriate that statements that are simply factually inaccurate—not matters of opinion, but matters of fact—are able to be adjudicated by the Electoral Commissioner. We know that the Electoral Commissioner would exercise their judgement very judiciously in these circumstances, as they have done previously. It is important that individuals who participate in the democratic process know that there are responsibilities that come with that participation, and that is that they do not have any right, real or implied, to lie in election advertising.</p> <p class="speaker">Derryn Hinch</p><p>I will be supporting this amendment by the Greens. I'm surprised that the government are not supporting it, especially after their justifiable criticisms of the opposition, the Labor Party, over 'Medismear' during last year's federal election, and especially after the Prime Minister's nocturnal comments on election night, when he got up and attacked Medismear, which, of course, saw their majority reduced to one seat. If this were the commercial world and you came out and made some non-factual claim about a miracle cure, the advertising watchdog would get you and hit on you, and you could be fined and have your product immediately withdrawn. If you are wrong in fact, as has been stressed by Senator Di Natale—not opinion or innuendo, as Senator Cormann says—then I think that you should be attacked. It should be withdrawn and you should be fined if proven guilty. It's not good enough to put your name on it and then, down the track, three months later after the election, or after the postal ballot on SSM, marriage equality, somebody says: 'Oh, that was bad. You shouldn't have done it. Naughty boy.' That's too late. If something is wrong in fact, it's wrong in fact. It should be withdrawn. It's an amendment well worth supporting.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>-
-
|