Bills Digest No. 101, 2016–17
PDF version [678KB]
Damon Muller
Politics and Public Administration Section
26
May 2017
Contents
The Bills Digest at a glance
Purpose of the Bill
Structure of the Bill
Background
Figure 1: the fake Medicare card
handed out by unions
Committee consideration
Joint Standing Committee on Electoral
Matters
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint
Committee on Human Rights
Key issues and provisions
Authorisation of electoral material
Electoral matter
Disclosure entities
Authorisation
How-to-vote cards
Electoral Commissioner’s
determination
Investigations and injunctions in
relation to authorisations
Potential issues with enforcement
Impersonating a Commonwealth body
Other provisions
Concluding comments
Date introduced: 30
March 2017
House: House of
Representatives
Portfolio: Special
Minister of State
Commencement: Section
1 to 3 and Schedule 2 commence the day after Royal Assent. Schedule 1
commences the day after six months after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at May 2017.
The Bills Digest at a glance
- The
Electoral and Other Legislation Amendment Bill 2017 (the Bill) implements a
comprehensive scheme for regulating the authorisation of electoral
communication for federal elections and referendums (Schedule 1), and
creates an offence criminalising impersonating a Commonwealth body (Schedule
2). The Bill seeks to address campaigning strategies such as the use of
bulk voice and text messages as was seen in the 2016 federal election.
- The
Bill implements a new electoral matter authorisation regime that covers a broader
range of types of election communication than the existing requirements. It
includes a table to clearly define the material which must carry information
regarding its source and authorisation, what information it must carry and
provides specific requirements for certain types of material (such as printed
material) and certain types of entities (such as political parties, associated
entities and political donors). The proposed requirements explicitly cover bulk
text messages and voice messages, and have exceptions for certain types of
communications (printing on clothing, reporting of news and satire, for
example).
- Certain
types of individuals and organisations undertaking electoral communication,
such as political donors, and certain types of communication, such as bulk text
messages, which did not require provision of authorisation details under the
existing arrangements will require authorisation under the proposed provisions
of the Bill.
- The
Bill further provides for the Electoral Commissioner to issue a disallowable
legislative instrument to specify details of the authorisation requirements.
- The
Bill would make breaches of the new authorisation requirements a civil offence
enforceable under the Regulatory Powers (Standard Provisions) Act 2014, carrying
a civil penalty of 120 penalty units (currently $21,600) for an individual. The
Bill would require the Australian Electoral Commission (AEC) to investigate and
enforce breaches of the authorisation requirements, and provides investigative
powers to the AEC to obtain and retain information and documents in its
investigations of these breaches. It would also expand the existing powers to
impose injunctions to include carriage service providers in relation to bulk
voice calls and text messages.
- The
changes to the authorisation requirements for electoral matter in the Bill are
essentially identical for the two main pieces of electoral legislation, the Commonwealth
Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984.
- The
Bill would amend broadcasting legislation covering the public and commercial
broadcasters to require broadcasters to collect the information required to be
broadcast with electoral matter, and oblige them to take steps to ensure the
correct details are broadcast.
- The
Bill amends the Criminal Code Act 1995 to create the offence of ‘false
representations in relation to a Commonwealth body’, carrying a maximum penalty
of imprisonment for two years. The offence is similar to that of impersonating
a Commonwealth official, though is not focused on a specific individual, and
applies regardless of whether the body being impersonated exists.
Purpose of
the Bill
The purpose of the Electoral and Other Legislation
Amendment Bill 2017 (the Bill) is to amend the Commonwealth Electoral Act
1918[1]
(CEA) and the Referendum (Machinery Provisions) Act 1984[2]
(RMPA) (collectively, the electoral legislation) to:
- extend
the current requirements for authorisation of electoral material to cover all
electoral material, including bulk text messages, bulk voice calls, and
internet advertisements
- to
provide procedures for investigations of and injunctions against entities that contravene
those requirements and
- to
amend the Criminal Code Act 1995[3]
to create a new offence of ‘false representations in relation to a Commonwealth
body’.
The Bill also amends the Australian Broadcasting
Corporation Act 1983,[4]
the Broadcasting Services Act 1992,[5]
the Parliamentary Proceedings Broadcasting Act 1946[6]
and the Special Broadcasting Service Act 1991[7]
(collectively, the broadcasting legislation) to collect the required
particulars for the broadcasting of electoral material and to include the
requirement to announce authorisations of electoral material where required by
the CEA and RMPA.
Structure
of the Bill
The Bill is presented in two Schedules.
Schedule 1 has two parts, and commences the day
after six months from when the Act receives Royal Assent.
Part 1 includes the amendments to the electoral legislation
to establish the expanded requirements for the authorisation of electoral
material. It establishes the concept of a ‘notifying entity’ that is
responsible for authorising specific electoral communication, lists the
required particulars to be included for specific classes of political
communication, and provides civil penalties for failing to properly authorise
electoral material. It further provides powers to the Australian Electoral
Commission (AEC) to conduct investigations and seek injunctions in relation to
authorisation of electoral material.
Part 2 contains the amendments to the broadcasting Acts
to require broadcasters to collect the required information and broadcast the
appropriate authorisation notices for electoral material.
Schedule 2 creates the new offence of ‘false
representations in relation to a Commonwealth body’ and commences the day after
the Act receives Royal Assent.
Background
One of the pivotal issues of the 2016 Federal Election was
the privatisation of Medicare. In August 2014 the Department of Health had
sought expressions of interest (EOI) for outsourcing the payments functions of
several benefits schemes, including Medicare.[8]
According to the EOI the outsourcing would not have affected the face-to-face
services of Medicare.[9]
As part of its election campaign the opposition Labor Party
claimed that the Coalition Government intended to privatise Medicare. The Prime
Minister denied that the Government was planning to privatise Medicare, and
gave a commitment that ‘every element of Medicare’s services will continue to
be delivered by government. Full stop’.[10]
Despite the Prime Minister’s denials, veteran political commentator Paul
Bongiorno noted that ‘the electorate is highly suspicious of the conservatives
in the health space’.[11]
Labor’s Medicare campaign was dubbed ‘Medi-scare’ by the
media, and which was considered responsible for a significant poll boost for
Labor, putting it much closer to an election win, and required the Coalition to
re-focus its campaign to counter the perception that it would privatise
Medicare.[12]
In the days leading up to election day unions handed out
one million cardboard flyers resembling Medicare cards supporting the campaign
(see Figure 1).[13]
The campaign also included bulk broadcasts of mobile phone text messages and
bulk ‘robo-call’ voice messages.
Figure 1: the fake Medicare card handed out by unions
Source: Provided by the National Library of Australia election
ephemera collection.
The voice messages included one message from the president
of the Australian Council of Trade Unions (ACTU) and another targeting Malcolm
Turnbull on Medicare that had no indication of its source.[14]
A bulk text message was sent from Labor’s Queensland
office that, according to a report in Crikey, purported to be from
Medicare. The message stated, ‘Mr Turnbull’s plans to privatise Medicare will
take us down the road of no return. Time is running out to Save Medicare.’[15]
The Queensland Labor state secretary, in evidence to the
JSCEM inquiry, stated that Labor had sent the message but that it has not been
intended to be represented as having been sent by Medicare but rather that the
message had a subject line of ‘Medicare’ as it was in relation to Medicare.[16]
The Labor and union movement campaign tactics drew several
comments from the Prime Minister. In his campaign launch speech a week before
the election, Prime Minister Turnbull stated:
Labor believes its best hope of being elected is to have
trade union officials phone frail and elderly Australians in their homes at
night, to scare them into thinking they are about to lose something which has
never been at risk. Bill Shorten put this Medicare lie at the heart of his
election campaign. That’s not an alternative government, that’s an opposition
unfit to govern.[17]
In his election night speech Prime Minister Turnbull
labelled the campaign ‘some of the most systematic, well-funded lies ever
peddled in Australia’.[18]
He stated:
The mass ranks of the union movement and all of their
millions of dollars, telling vulnerable Australians that Medicare was going to
be privatised or sold, frightening people in their bed and even today, even as
voters went to the polls, as you would have seen in the press, there were text
messages being sent to thousands of people across Australia saying that
Medicare was about to be privatised by the Liberal Party.
And the message, the message, the SMS message came from
Medicare. It said it came from Medicare. An extraordinary act of dishonesty. No
doubt the police will investigate. But this is, but this is the scale of the
challenge we faced. And regrettably more than a few people were misled. There’s
no doubt about that.[19]
The SMS message was referred to the Australian Federal
Police by the Government, however, the AFP reportedly found there was no
possibility of prosecution as it was not an offence to imitate a Commonwealth
entity.[20]
The lack of ability to prosecute was reportedly because the message appeared to
come from Medicare as an entity and not from an individual government officer.[21]
A post-election survey by JWS Research found that health
was the most important issue in the campaign, with 57 per cent of respondents
nominating heath as a key vote influencer, including 38 per cent specifying
Medicare specifically. Voters who voted on election day, and those who decided
who they would vote for on election day, were more likely to nominate Medicare
as a vote influencer.[22]
Following the election, the Special Minister of State,
Senator Scott Ryan, asked the Joint Standing Committee on Electoral Matters
(JSCEM) to ‘inquire into and report on all aspects of the 2016 federal election
and related matters’. As part of the terms of reference to the Committee, the
Minister included ‘the application of provisions requiring authorisation of
electoral material to all forms of communication to voters’.[23]
The Committee was asked to provide an interim report on authorisation
requirements for voter communication.
On 9 December 2016, following a number of public hearings,
the Committee released its Interim
Report on the Authorisation of Voter Communication.[24]
The report contained six recommendations. Recommendations 1 to 3 and 5 and 6
related to amending the CEA to explicitly address the authorisation of
electoral material and to make the authorisation requirements clear, concise
and easy to navigate. Recommendation 4 was that the Committee conduct further
inquiry and make recommendations in relation to the issues of impersonating a
Commonwealth officer and a Commonwealth entity. These recommendations are
discussed in more detail under Committee consideration. It was noted in the second
reading speech that the Bill addresses the recommendations in the report.[25]
Committee
consideration
Joint
Standing Committee on Electoral Matters
The Bill was introduced by the Government in response to
recommendations from the JSCEM in its Interim
Report on the Authorisation of Voter Communication of December 2016, as
part of its Inquiry into and report on all aspects of the conduct of the 2016
Federal Election and matters related thereto.[26]
The Bill had not been referred back to the Committee at the time of
publication.
In its report the Committee noted that the existing
requirements for authorisation in the CEA were inadequate to the task of
ensuring transparency and accountability for electoral communication. The
report recommended that a principles based approach be adopted based on
accountability, traceability, and consistency. In addition, the Committee
argued that the CEA should be made more user friendly, and that the
authorisation provisions be brought together in a stand-alone part of the Act
to be clearer and more easily accessible. To further aid in clarifying the
requirements, the Committee recommended that an ‘objects clause’ be inserted
into the Act to list the principles and purpose of the authorisation
requirements.
The Bill adheres closely to the Committee’s
recommendations. The insertion of a new Part to the electoral legislation
dealing explicitly with authorisation of electoral matter with a table listing
the requirements for different actors and different forms of electoral matter
is consistent with recommendations 1 and 2. The objects clauses (recommendation
3) in items 10 and 30 follow the principles presented in
recommendation 1 and are consistent with recommendation 6 that electoral
communication not be unduly interfered with. The consequential amendments to
the broadcasting legislation in the Bill are consistent with recommendation 5.
Recommendation 4 from the Committee’s report was that the
Committee ‘conduct further inquiry and make recommendations in early 2017
regarding the issues of impersonating a Commonwealth officer and Commonwealth
entity’. This recommendation appears to have been pre-empted by the Bill in its
creation of the offence of false representations in relation to a Commonwealth
body in Schedule 2.
Senate
Standing Committee for the Scrutiny of Bills
On 10 May 2017 the Senate Standing Committee for the
Selection of Bills recommended that the Bill not be referred to a committee for
inquiry and report.[27]
Policy
position of non-government parties/independents
The JSCEM report that led to the Bill was presented as a
unanimous report. The Committee included members from the Coalition, the ALP
and the Greens. Crossbench senators Derryn Hinch and David Leyonhjelm were
participating members for the purpose of the inquiry.
In its submission to the JSCEM inquiry the Liberal
Democrats argued for the removal of any requirement to authorise electoral
material.[28]
There does not appear to have been any media releases or
other media reports suggesting that other Australian federal political parties
are opposed to the authorisation changes suggested in the Committee’s report.
There has not been any substantial media commentary on the Bill since it was
introduced, and the Bill has not yet been debated in Parliament.
Separately to the authorisation provisions, media reports
stated that the Labor Party does not support the amendments in the Bill to
introduce the offence relating to impersonating a Commonwealth body. The Labor
deputy chair of the Committee is quoted as saying:
Malcolm Turnbull is demonstrating contempt for the joint
standing committee on electoral matters ... Changes to criminal law must be
properly considered, as the committee has determined. The integrity of the
electoral system and the healthy functioning of our democracy are more
important than Malcolm Turnbull’s battered ego.[29]
Position of
major interest groups
A number of industry groups provided submissions to the
JSCEM that touched on some of the issues covered in the Bill.
Free TV Australia, a commercial television industry body,
and the Communications Alliance, a communications industry body, provided brief
submissions to the inquiry. Free TV Australia argued against legislation that
increased the regulatory burden on broadcasters who publish political
advertisements and both argued against carriers having any liability or
authorising role under law for political communications that they carried.[30]
The Printing Industries Association of Australia, the peak
industry body for the print, visual communications and media technology sector,
in its submission to the inquiry, argued for the continued requirement that authorisation
be retained for printed material and similar authorisations be required for
non-printed electoral material.[31]
In general, submissions from third party campaigners,
lobbyists and industry organisations focused more on issues such as declaration
of donations than they did on authorisation of electoral matter. There were no submissions
to the JSCEM subsequent to the publication of the Bill that refer specifically
to the provisions of the Bill at the time of publication of this Bills Digest.
At the time of publication there does not appear to have
been any public or media commentary about the specific provisions of the Bill
from interest groups.
Financial
implications
The Explanatory Memorandum for the Bill lists the
financial impact for 2017–18 as being $5.8m, and for 2018–19, 2019–20 and
2010–21 as being $0.9m for each year for proposed Schedule 1 (that is,
the provisions relating to electoral authorisation).[32]
Although not specified in either the Bill or the
Explanatory Memorandum, it is likely that the financial impact of the Bill
relates to the investigatory function of the AEC in relation to authorisation.
The AEC currently has responsibility for regulating
non-compliance with the electoral authorisation provisions of the CEA. The
AEC websites states:
Breaches of sections 328B and 329 [authorisation of
how-to-vote cards and misleading or deceptive publications], because of their
possible impact on the outcome of an election, require immediate action. If
offending material is not immediately withdrawn or amended, the AEC may take
injunction action in accordance with section 383 of the Act. (Note: Injunctive
action may also be taken by a candidate in the election pursuant to section
383.)
If the AEC considers there to be a breach of sections 328 or
328A [publication etc. of electoral advertisements without authorisation],
generally the AEC will write to the relevant person seeking that the material
be withdrawn until such time as the material is amended so as to comply with
the law. In relation to a breach of section 331 [identification of electoral advertisements],
the AEC will write to the relevant person seeking that any future publication
of the same material comply with the law.
If there is continued non-compliance or a more serious breach
of sections 328, 328A, 328B, 329 or 331, the matter may be referred to either,
or both, the Australian Federal Police (AFP) and the Director of Public
Prosecutions (DPP) for further action. Further, because the electoral impact of
a less serious matter may vary according to the circumstances in which it
occurs, the AEC may also consider it appropriate to refer a less serious matter
to either, or both, the AFP and the DPP.
If there is any doubt as to whether there may have been a
breach, the matter will be referred to the DPP for advice.[33]
Under the proposed amendments in the Bill, breaches of the
authorisation requirements will incur a civil, rather than a criminal, penalty
and as such the AFP and the DPP will no longer be involved in the decision to
take action. The increased funding for the first year of operation may be to
allow the AEC to implement training, policies and procedures in order to assume
these investigation and enforcement functions. The recurrent funding may be for
additional staffing to undertake these functions.
The AEC notes that it regards non-compliance during
election periods as potentially more serious due to the potential to affect the
casting of votes, which would therefore result in expected workloads of the
compliance function increasing during election periods. This does not appear to
be reflected in the financial implications.
The Explanatory Memorandum for the Bill notes that the
recovery of civil penalties under the proposed provisions may have an impact on
Government revenue, but that it is unable to be quantified ‘at this time’.[34]
The Explanatory Memorandum does not address the financial
implications of the proposed offence of false representations in relation to a
Commonwealth body. It is likely that this new offence does not have any
specific financial implications. Any financial burden to the Commonwealth in
relation to the new offence will likely affect the DPP and the AFP.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s
compatibility with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of that Act. The Government
considers that the Bill is compatible.[35]
Parliamentary Joint Committee on Human Rights
In its 9 May 2017 report, the Parliamentary
Joint Committee on Human Rights advised that it had deferred consideration of
the Bill.[36]
Key issues
and provisions
Authorisation
of electoral material
The Bill would amend the provisions in the electoral
legislation that deal with authorisation of electoral matter and replace them
with more comprehensive and cohesive provisions. Both the CEA and the RMPA
have substantially similar provisions which regulate the authorisation of
electoral matter and the Bill would amend both in substantially similar ways.
As such, these will be discussed together here for simplicity, with differences
noted.
Electoral
matter
Electoral matter is defined in subsections 4(1) and 4(9)
of the CEA. The current definition of ‘electoral matter’ at subsection
4(1) is retained in the Bill. It means ‘matter which is intended or likely to
affect voting in an election’. Item 2 of the Bill adds a reference to
subsection 4(9) in a note to the definition of electoral matter in subsection 4(1).
Without limiting the broad definition of electoral matter in subsection 4(1), subsection
4(9) sets out matters that are taken to be electoral matters. Item 4 would
repeal and replace subsection 4(9) so that matters that are specified as
electoral matters may differ depending on whether or not the term is used in
relation to authorisation of electoral matter.
Under proposed subsection 4(9), material is taken to be
electoral matter in all circumstances if it comments on the election,
political parties or candidates in an election, or issues presented to electors
in connection with an election. Material that refers to these matters is
also taken to be electoral matter, except in proposed Part XXA of the CEA,
which deals with authorisation of electoral matter. That is, material that is
taken to be electoral matter in Part XXA is narrower than that taken to be
electoral matter in all other parts of the CEA.
While the Bill removes explicit reference to the current
or former government or opposition in describing what is taken to be an electoral
matter in subsection 4(9), it adds a note to that subsection that provides that
a comment on a current or previous government in relation to an issue in an
election is an example of an electoral matter. Comment on a ‘a member or former
member of the Parliament of the Commonwealth or a State or of the legislature
of a Territory’ (current paragraph 4(9)(d)) will no longer be specifically taken
to be an electoral matter, although this does not mean that such matters will
not come within the definition of electoral matter, depending on the
circumstances.
Disclosure
entities
Central to the proposed authorisation regimes in both the CEA
and the RMPA is the definition of a ‘disclosure entity’, which is
defined in proposed section 321B in Part XXA of the CEA (or
proposed section 110A in the case of the RMPA amendments).[37]
The authorisation requirements for electoral matter will vary depending on
whether or not the individual or entity publishing the electoral matter is a
disclosure entity.
The concept of a disclosure entity is explicitly connected
to the requirements to disclose under Part XX, the election funding and
financial disclosure provisions of the CEA (this is also true of the proposed
amendments in the Bill to the RMPA, which reference the CEA).
Current and former candidates (for the previous four years for candidates for
election to the House of Representatives or seven years for candidates for
election to the Senate), registered political parties and current senators and
Members of the House of Representatives are disclosure entities.
Associated entities, which are defined under Part XX of
the CEA, are disclosure entities. Associated entities include unions
that pay affiliation fees to political parties and organisations that are set
up as fundraising vehicles by political parties.
In addition, individuals or organisations who are required
to submit returns to the AEC because they have donated to a party or a
candidate, or have incurred reportable political expenditure, above the disclosure
threshold (currently $13,200)[38]
are disclosure entities.
The required particulars for authorisation for disclosure
entities is designed to allow the electoral matter to be easily linked to the
entity’s other involvement in the election, such as their donations, status as
an associated entity, or political expenditure, which is made public through
the AEC’s electoral returns database.
Authorisation
The CEA currently addresses the authorisation of
electoral material in three sections, all of which are in Part XXI of the Act,
covering electoral offences:
- section
328, which covers physical electoral material, other than how-to-vote (HTV)
cards, including flyers, posters, and newspaper advertisements (with a small
number of specific exemptions, such as t-shirts, badges and business cards)
- section
328A, which specifically regulates electoral advertising on the Internet and
- section
328B, which regulates authorisation of HTV cards.
The internet-specific provisions in section 328A were
inserted by the Electoral and Referendum Amendment (Electoral Integrity and
Other Measures) Act 2006[39]
in response to a recommendation by the JSCEM’s inquiry into the 2004 federal
election. The Committee viewed the application of section 328 to electoral
material on the internet as ‘cumbersome, and perhaps unenforceable’, and
recommended that specific provisions be made for internet electoral matter that
made clear it was distinct from general commentary on the internet
(recommendation 44).[40]
In the decade since the addition of section 328A the
distinction between offline and online electoral matter has become increasingly
superfluous. Electoral video recordings, which are today most likely to be
distributed on the internet, are regulated under section 328, for example.
Identical flyers might be distributed to interested parties in physical form,
in electronic form with the intention that they be printed out, or with the
intention they be viewed electronically. And, for certain communications such
as text messages and automated voice calls, it is not clear whether
authorisation is required.
The Bill proposes repealing these sections (item 11
of Schedule 1). It would also repeal section 331, which requires electoral
advertisements in newspapers to carry the heading ‘Advertisement’ and section
334 which bans the depiction of electoral material ‘directly on any roadway,
footpath, building, vehicle, vessel, hoarding or place (whether it is or is not
a public place and whether on land or water or in the air)’ (item 12).
The RMPA has two sections that regulate
authorisation in printed and published forms (section 121) and on the internet
(section 121A). Section 124 requires electoral advertising in newspapers to
carry the heading ‘Advertisement’. These three sections would be repealed by
the Bill (item 31).
Item 10 of Schedule 1 to the Bill would insert proposed
Part XXA, which collects together the provisions regulating authorisation,
into the CEA. Similarly, item 30 would amend the RMPA to
insert proposed Part IX, regulating the authorisation of referendum
material.
The key provision relating to authorisation of electoral
matter is in proposed section 321D, which:
- provides
for which electoral matter requires authorisation and which does not
- includes
a table specifying what authorisation is required for different forms of
electoral matter and
- allows
the Electoral Commissioner to issue a disallowable legislative instrument
specifying certain aspects of authorisation requirements.
Proposed subsections 321D(1) and (2) provide
that the authorisation requirements apply to a broad range of electoral matter communications.
In the notes to the subsection internet advertisements, bulk text messages and
bulk voice calls containing electoral matter are communications that are explicitly
mentioned as being covered by the provisions.
Any electoral matter communicated by a disclosure entity, specific
printed matter (including stickers, fridge magnets, posters and HTV cards) that
is approved by a person, and other electoral advertising that is authorised by
a person and paid for, are included under subsection 321D(1). Subsection 321D(2)
specifies who is responsible for making the authorisation if the electoral
matter is being communicated by one entity on behalf of another. The individual
responsible for making the disclosure will be the ‘notifying entity’.
Proposed subsections 321D(3) and (4) provide
exceptions to the authorisation requirements. Briefly, clothing or anything
that is designed to be worn is specifically exempted, as are reporting of the
news, communication for satire, academic or artistic purposes, internal or
personal communications, and meetings or live broadcasts of meetings where the
speaker can be reasonably identified. Recorded broadcasts of meetings will
require authorisation.
Proposed subsection 321D(5) contains a table that
lists the specific authorisation requirements, or ‘required particulars’ for different
forms of electoral matter. It has separate requirements for:
- specific
printed electoral matter (stickers, fridge magnets, leaflets, flyers,
pamphlets, notices, posters or HTV cards, collectively referred to in the
Explanatory Memorandum as ‘specified printed matter’) and ‘any other
communication’
- those
who are and are not disclosure entities and
- those
who are and are not natural persons.
For example, if a union that is an associated entity (and
hence a disclosure entity) posts a picture on Facebook that is about an
election and intended to influence voting in an election, it would be covered
under item 2 of the table in proposed subsection 321D(5) and would
require that it listed the name of the union, the relevant town or city where
it had its principal office (as defined by proposed section 321B), and
the name of a person responsible for authorising the matter.
Failure to correctly authorise the matter would result in
a civil penalty of a maximum 120 penalty units (currently $21,600). Paragraph 82(5)(a)
of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory
Powers Act)[41]
states that if the person is a body corporate the maximum pecuniary penalty is
five times the specified penalty (600 penalty units, or $108,000).
Item 30, which proposes to amend the RMPA,
is essentially the same as item 10, with the addition of an exemption
from authorisation if material is communicated by or on behalf of a state or
territory or an authority of a state or territory (proposed paragraph
110C(3)(b)).
How-to-vote
cards
Under the CEA, HTV cards and other printed
electoral matter are treated separately, and arguably inconsistently. Section
328B of the CEA specifically regulates the authorisation requirements
for HTV cards for federal electoral events, whereas the proposed Bill incorporates
HTV cards in with the regulation of authorisation of the specified printed
material.
Under the Bill HTV cards will no longer have to be
authorised on each printed page and will no longer be required to include the
word ‘candidate’ for candidates who authorise their own HTV cards (unless the determination
issued by the Electoral Commissioner under proposed subsection 321D(7) subsequently
require this). Under the Bill, HTV cards would need to include the name and
address of the printer who printed the HTV card.
It is not clear how the authorisation requirements under
the proposed Bill will deal with ‘second preference HTV cards’, where a party
or candidate issues a HTV card designed to be mistaken for another party’s
official HTV card, but with the issuing candidate or party listed as the second
preference. The AEC states that second preference HTV cards would probably be
held by courts to be in contravention of subsection 329(1) of the CEA
(which relates to misleading advertising), which is not affected by the Bill,
however, also notes that the requirements of section 328B that the relevant
candidate or party’s name be on both side of the HTV card, which will be
removed by the Bill, also serves to prevent second preference HTV cards.[42]
Proposed subsection 321D(5) would retain the requirement for the
issuing party’s name to be included on the HTV card, and the Electoral
Commissioner’s determination under proposed subsection 321D(7) may
require the party name to be included on each printed face, as under subsection
328B(1).
Electoral
Commissioner’s determination
Much of the specific detail of how the authorisation
requirements will work in practice is missing from the Bill as it will form
part of the legislative instrument issued by the Electoral Commissioner under
proposed subsection 321D(7). For example, the Explanatory Memorandum notes that
the Bill does not impose specific requirements for when in relation to a
broadcast political advertisement the authorisation must air, but notes that
this will be defined in the proposed subsection 321D(7) determination.[43]
It further notes that the Electoral Commissioner will be required to consult
with relevant stakeholders, including broadcasters, in making this
determination.[44]
As noted above, the current requirement for HTV cards to
carry authorisations on each printed side is absent from the Bill, but may be
added under the determination.
Whilst this approach allows for more flexibility in a
changing media environment, and allows for the legislative instrument to add
new media or communications forms as they arise, it also impacts on the ability
of the Bill to simplify the authorisation requirements. The simplified table in
proposed subsection 321D(5) alone may not provide sufficient information
to correctly authorise a piece of communication—those undertaking public
political communication must consult both the CEA and the legislative
instrument, however complex it may be.
Investigations
and injunctions in relation to authorisations
The sections of the CEA relating to electoral
authorisations being repealed and replaced by the Bill make the failure to
correctly authorise electoral material a criminal offence. As discussed above,
breaches of these offences are referred to the AFP and the DPP to investigate
and prosecute, and it is the responsibility of the AFP and DPP to determine
whether there is sufficient evidence of an offence to warrant investigation and
prosecution.
By imposing a civil penalty under the Regulatory Powers
Act,[45]
breaches of proposed section 321D will be investigated and enforced by
the AEC. Item 27 of Schedule 1 inserts proposed section 384A into
the CEA, to provide that breaches of proposed section 321D are
enforceable under the Regulatory Powers Act as a civil penalty or an enforceable
undertaking (item 45 in the case of the RMPA). Division 3 of the
proposed Part XXA of the CEA, and Division 3 of the proposed Part IX of
the RMPA, supply the AEC with investigatory powers in order to undertake
these investigations and enforcement in relation to electoral authorisation.
Proposed section 321F gives the Electoral
Commissioner the power to obtain information or documents from persons,
requiring the Electoral Commissioner to have regard to the costs of supplying
those documents, and allowing compensation to be paid for complying with the
request. Proposed section 321G allows the Electoral Commissioner to copy
documents obtained under proposed section 321F and retain those copies,
and proposed section 321H allows the documents themselves to be retained
as long as necessary. These powers operate explicitly to allow the Electoral
Commissioner to assess compliance with electoral authorisation requirements.
The existing provisions on injunctions in section 383 of
the CEA are expanded in items 14 through 26 to specifically allow
injunctions to be granted against carriage service providers. These injunctions
target carriage service providers such as phone companies that distribute bulk
voice calls or bulk text messages if the communication that they are carrying
is, or may be, in breach of proposed section 321D. As with existing
section 383 injunctions, an application for the injunction can be brought by
either a candidate in the election or the Electoral Commissioner. Substantially
similar amendments are proposed to the RPMA section 139 relating to
injunctions in items 32 through 44.
The proposed authorisation provisions are the only
provisions in the CEA to which a civil penalty would apply. The
Government has not stated why these specific provisions are considered to be
appropriate for a civil enforcement regime, whilst the rest of the contraventions
under the Act retain criminal penalties. The JSCEM report did not make specific
recommendations as to whether the penalties should be criminal or civil.
Potential
issues with enforcement
With such comprehensive coverage of electoral matter to be
authorised it is not clear how practical all of the proposed provisions will be,
particularly in the absence of the proposed subsection 321B(7) determination.
For example, a person who donates an amount to a political party above the
disclosure threshold (currently $13,200)[46]
would be required to submit a return under section 305B, and is thus considered
to be a disclosure entity. A person who has not donated to a political party,
in contrast, would not be subject to proposed section 321D authorisation
requirements unless the electoral matter is either specified printed matter or
has been paid for.
If an individual who is a disclosure entity places a post
on Twitter advocating that people vote for a certain party, this would appear
to require notification under proposed paragraph 321D(1)(c), assuming
that this would not be considered a ‘communication communicated for personal
purposes’ and therefore exempt under proposed paragraph 321D(4)(d). The
communication would require particulars under item 4 of the table in proposed
subsection 321D(5) consisting of the person’s name and the town or city in
which they live.
Exactly how that required information is attached to the
communication is not specified in the Bill, and would be presumably dependent
on the legislative instrument issued by the Electoral Commissioner under proposed
subsection 321D(7). In the absence of such a legislative instrument, it is
not clear whether the required particulars would need to be included in the
text of the tweet (using some of the 140 characters available), or whether it
is sufficient for the information to be included in the individual’s Twitter
biography section, which may or may not be easily accessible from the text of
the post. Note that the Regulatory Powers Act does not require intent to
be proved in order for a contravention of a civil penalty provision to be
established (section 94), but does have a defence of a mistake of fact (section
95), so enforcement might be difficult in the absence of an advertising
campaign to notify the public of the change.
Bulk text messages are also explicitly covered under the
Bill. The Medicare related text messages sent by the Queensland ALP during the
2016 federal election campaign would be covered under item 2 of the
table in proposed subsection 321D(5) and therefore must include the name
of the entity, the relevant town or city, and the name of the person giving the
authorisation. Text messages were originally limited to 160 characters, and
longer text messages are sent as a number of short text messages that are
reassembled before viewing. Therefore a text message that is long enough to contain
the required particulars will typically in reality consist of a number of text
messages, some of which will not contain the required particulars. One or more
of these component messages may be reordered or lost in transit which may
result in the overall message not being correctly authorised.
One area that might prove difficult to regulate under the
Bill relates to ‘astroturfing’, or campaigns that are organised to appear as
spontaneous or unsolicited comments from the community. For example, if a candidate
or party engages individuals (even in the absence of payment) to promote the
candidate or party on social media, those social media posts must, under proposed
subsection 321D(5), include the required particulars (for a party being the
name of the party, the relevant town or city, and the name of the person who
authorised the communication). It is not clear how effective the information
gathering powers that Division 3 of proposed Part XXA gives to the AEC
would be in uncovering the identity of the posters, particularly where
Australians are posting on a social media site hosted overseas.
Similarly, if during an election campaign any campaign
workers were instructed to call into a talk-back radio station in the guise of
a listener to promote the party’s daily talking points, disclosure would be
required under the Bill. If the campaign worker was to either use their own
name and not disclose the required particulars, or was to use a false name, the
party would be in breach of proposed section 321D. If an individual
suspected that this behaviour was in breach and reported their suspicions to
the AEC, it is not clear what discretion the AEC has to investigate the alleged
breach or to determine that it is insufficiently serious to merit the required investigatory
resources during the election period. However, should the AEC determine that a
breach had occurred, under the Regulatory Powers Act (Part 6) it could accept
an enforceable undertaking to prevent further breaches or apply for an
injunction under the CEA.
Particularly in a close election, electoral actors have
been known to push the boundaries of what is and is not legal as far as
electoral advertising goes (the Medicare text messages are arguably an example
of this). They may do this in the knowledge that even if their communication is
found to not be legal and in breach of the Act, regulation and enforcement
might be slow, and the message might have had its intended effect before it is
halted.
Continuing the example of the Medicare text messages, even
under the proposed provisions of the Bill that allow injunctions against
carriage service providers, the period between when the message is broadcast
and when the injunction is imposed may be enough to influence sufficient
numbers of voters to make a difference.
Electoral advertising is counted in the millions of
dollars (at the 2016 federal election the Liberal Party spent $6 million
and the Labor party $4.7 million),[47]
and therefore a civil penalty of up to $108,000 may not be seen as a
significant deterrent to some parties if it increases their chance of winning
the election. In the absence of a criminal trial and potential conviction, it
could be priced into the election advertising budget. As such, the practical
deterrent effect of the measures proposed in the Bill remains to be seen.
Impersonating
a Commonwealth body
Schedule 2 of the Bill contains a proposed
amendment to the Criminal Code Act 1995[48]
to create a new Division to the Act and to create a new offence of ‘false
representations in relation to a Commonwealth body’. The proposed offence is
added to the existing offences in Part 7.8 of the Criminal Code Act
relating to ‘causing harm to, and impersonation and obstruction of, Commonwealth
public officials’. The existing offences cover:
- causing
harm to Commonwealth public officials
- threatening
to cause harm to a Commonwealth public official
- impersonating
an official and
- obstruction
of Commonwealth public officials.
The proposed offence is, in intent, although not
structure, most similar to section 148.1, ‘impersonation of an official by a
non-official’. In the second reading speech it was noted that it was not clear
whether these existing provisions covered the situations addressed by the
proposed new offence, hence the need for the new offence.[49]
Similarly to section 148.1, the offence distinguishes
between conduct carried out with the intent to obtain a gain, cause a loss, or
influence the exercise of a public duty or function, which carries a maximum penalty
of five years imprisonment, and that which does not have that intent, which
carries a maximum penalty of two years imprisonment.
The proposed amendment specifies that the government
department need not exist in order for the offence to apply, however, if the
body does not exist the offence does not apply unless a person would reasonably
believe that the department does exist. In addition, the offence does not apply
for conduct that is for satirical, artistic or academic purposes.
Due to its inclusion in a Bill that otherwise addresses
electoral issues, the new offence appears to target behaviour such as that seen
with the pre-election ‘Medicare’ text messages. As noted above, in the Prime
Minister’s election night speech he stated, ‘And the message, the message, the
SMS message came from Medicare. It said it came from Medicare. An extraordinary
act of dishonesty. No doubt the police will investigate’.[50]
The proposed amendment states that the offence does not
apply if it would infringe the implied freedom of political communication in
the Australian Constitution. The law being applied against a major
political party in the midst of an election campaign would be a substantial
test of that. Following McCloy v New South Wales[51]
the application of the law against a political advertisement would have to pass
the proportionality test. That is, if the law burdens the freedom of political
communication, is it suitable, necessary, and adequate in its balance?:
A law is ‘suitable’ if it has a rational connection to its
purported purpose. It is ‘necessary’ if there is ‘no obvious and compelling
alternative, reasonably practicable means of achieving the same purpose which
has a less restrictive effect on the freedom’. It is ‘adequate in its balance’
if the court makes the value judgment that the importance of the purpose served
by the law outweighs the extent of the restriction that it imposes on the
freedom.[52]
If the proposed offence was applied to the text messages
which were apparently from Medicare it would likely require an appeal to the
High Court to determine whether the message was constitutionally protected.
The proposed offence would not appear to apply to the fake
Medicare cards being handed out to voters by the unions as it seems likely that
these would be viewed as not ‘reasonably capable of resulting’ in a
representation on behalf of a Commonwealth body, due to the card being
obviously not a genuine Medicare card.[53]
Other provisions
The provisions in Part 2 of Schedule 1 of the Bill
consequentially amend four pieces of broadcasting legislation (Australian
Broadcasting Corporation Act 1983, Broadcasting Services Act 1992, Parliamentary
Proceedings Broadcasting Act 1946 and Special Broadcasting Service Act
1991) to make them consistent with the changes in the CEA.
The proposed amendments to the Parliamentary
Proceedings Broadcasting Act 1946 in item 62 only update it to insert
references to the CEA and RMPA. The remaining three broadcasting
acts already include requirements for broadcasters to include authorisations
for electoral material and the proposed amendments replace these requirements
with references to the proposed sections in the CEA, including the relevant
sections of the table in proposed subsection 321D(5).[54]
As part of replacing the required particulars, the
proposed amendments to the broadcasting legislation remove the requirement for
electoral advertising to identify who is speaking in an electoral advertisement
(items 51, 55 and 67).
In each case the proposed
amendments require the broadcaster to take reasonable steps to verify the
accuracy of the supplied required particulars for electoral advertising (items
52, 60 and 68). The Bill provides examples of these steps, including
notifying those who wish to broadcast political matter of the requirements, and
seeking a verification as to whether the person is a disclosure entity (to
determine which of the specific required particulars applies).
The exact form in which the authorisation will be
broadcast in association with the political matter will be determined by the
legislative instrument issued by the Electoral Commissioner under proposed
subsection 321D(7).
Concluding
comments
Although nominally a regulatory agency, the AEC has
generally managed to remain outside the political fray by taking a fairly
light-touch approach to regulating political communication and deferring much
of the decision making relating to investigating and prosecuting electoral
offences to other agencies, such as the AFP and the DPP. By empowering the AEC
to apply for injunctions, and investigate and prosecute certain classes of
electoral offences, the proposed Bill involves the AEC much more directly in regulating
political communication, and in the potential political fallout that its
decisions might generate doing so in the midst of an election.
While the exact implications of this remain to be seen, it is worth noting that
the Bill substantially changes the regulatory relationship between the AEC and
political actors, including potentially the parties of Government and opposition.
[1]. Commonwealth
Electoral Act 1918.
[2]. Referendum
(Machinery Provisions) Act 1984.
[3]. Criminal Code Act 1995.
[4]. Australian
Broadcasting Corporation Act 1983.
[5]. Broadcasting
Services Act 1992.
[6]. Parliamentary
Proceedings Broadcasting Act 1946.
[7]. Special
Broadcasting Service Act 1991.
[8]. P
Dutton (Minister for Health), EOI
for Medicare-PBS payment services, media release,
8 August 2014.
[9]. Ibid.
[10]. S
Duckett, ‘Is
Medicare under threat? making sense of the privatisation debate’, The
Conversation, 23 June 2016.
[11]. P
Bongiorno, ‘Faust
among equals’, The Saturday Paper, 25 June 2016, p. 15.
[12]. P
Correy, ‘“Mediscare”
delivers poll boost for Labor’, Australian Financial Review, 24 June
2016, p. 1.
[13]. R
Viellaris and J Tin, ‘Shorten
retreats on scare tactics’, Courier Mail, 29 June 2016, p. 13; P
Williams, ‘Malcolm
threw in millions but cash can’t silence the critics’, The Australian,
18 July 2016, p. 1.
[14]. Joint
Standing Committee on Electoral Matters (JSCEM), Official
committee Hansard, 11 November 2016.
[15]. J
Taylor, ‘ALP
says it was just following the rules on “Mediscare” SMS’, Crikey, 4
November 2016.
[16]. E
Moorhead (State Secretary, Australian Labor Party Queensland Branch), Evidence
to Joint Standing Committee on Electoral Matters, Inquiry into the conduct of
the 2016 federal election and matters related thereto, 31 January 2017.
[17]. M
Turnbull, ‘Steady
hand more crucial than ever’, Australian Financial Review, 27 June
2016, p. 4.
[18]. M
Turnbull, ‘Malcolm
Turnbull, Bill Shorten election night speeches in full’, Herald Sun,
(online edition), 3 July 2016.
[19]. Ibid.
[20]. K
Middleton, ‘The
new untruth of political campaigns’, The Saturday Paper, 17 December
2016, p. 1.
[21]. JSCEM,
The
2016 federal election: interim report on the authorisation of voter
communication, Commonwealth of Australia, Canberra, December 2016.
[22]. JWS
Research, Post
election survey: July 2016, JWS Research, Melbourne, July 2016.
[23]. S
Ryan (Special Minister of State, Minister Assisting the Cabinet Secretary and
Senator for Victoria), JSCEM
asked to report on 2016 election, media release, 14 September 2016.
[24]. JSCEM,
The
2016 federal election: interim report on the authorisation of voter
communication, op. cit.
[25]. J
Frydenberg, ‘Second
reading speech: Electoral and Other Legislation Amendment Bill 2017’, House
of Representatives, Debates, 30 March 2017, p. 3792.
[26]. JCSEM,
‘Inquiry
into and report on all aspects of the conduct of the 2016 federal election and
matters related thereto’, Parliament of Australia website, 2017.
[27]. Australia,
Senate, Journals,
41, 2016–17, 11 May 2017, p. 1346.
[28]. Liberal
Democratic Party, Submission
to Joint Standing Committee on Electoral Matters, Inquiry into and report on
all aspects of the conduct of the 2016 Federal Election and matters related
thereto, 31 October 2016.
[29]. K
Murphy, ‘Don’t
rush the electoral reform changes, Labor warns government’, The Guardian,
(online edition), 16 February 2017.
[30]. Communications
Alliance and Australian Mobile Telecommunications Association, Submission
to Joint Standing Committee on Electoral Matters, Inquiry into and report on
all aspects of the conduct of the 2016 Federal Election and matters related
thereto, 1 November 2016; Free TV Australia, Submission
to Joint Standing Committee on Electoral Matters, Inquiry into and report on
all aspects of the conduct of the 2016 Federal Election and matters related
thereto, 1 November 2016.
[31]. Printing
Industries Association of Australia, Submission
to Joint Standing Committee on Electoral Matters, Inquiry into and report on
all aspects of the conduct of the 2016 Federal Election and matters related
thereto, November 2016.
[32]. Explanatory
Memorandum, Electoral and Other Legislation Amendment Bill 2017, p. 4; The
Explanatory Memorandum does not list the units for the financial impact,
however, the Department of Finance has confirmed that the figures are in
millions of dollars.
[33]. Australian
Electoral Commission (AEC), ‘Electoral
backgrounder: electoral advertising’, AEC website, 9 June 2016.
[34]. Explanatory
Memorandum, Electoral and Other Legislation Amendment Bill 2017, p. 4.
[35]. The
Statement of Compatibility with Human Rights can be found at page 5 of the
Explanatory Memorandum to the Bill.
[36]. Parliamentary Joint Committee on Human Rights, Report, 4, 2017, The Senate, Canberra, 9
May 2017, p. 155.
[37]. See
items 10 and 30 of Schedule 1 to the Bill.
[38]. AEC,
‘Disclosure
threshold’, AEC website, 19 May 2016.
[39]. Electoral and
Referendum Amendment (Electoral Integrity and Other Measures) Act 2006.
[40]. JSCEM,
The 2004 federal election: report
of the Inquiry into the conduct of the 2004 federal election and matters
related thereto, Canberra, September 2005, pp. 278–279.
[41]. Regulatory Powers
(Standard Provisions) Act 2014. Proposed section 384A of the CEA,
inserted by item 27 of Schedule 1 to the Bill, provides that section
321D is enforceable under Part 4 (civil penalty provisions) and Part 6
(enforceable undertakings) of the Regulatory Powers (Standard Provisions)
Act. For information on the Regulatory Powers (Standard Provisions) Act see:
C Raymond, Regulatory
Powers (Standardisation Reform) Bill 2016, Bills digest, 42, 2016–17,
Parliamentary Library, Canberra, 2016.
[42]. AEC,
‘Electoral
backgrounder: electoral advertising’, AEC website, 9 June 2016.
[43]. Explanatory
Memorandum, Electoral and Other Legislation Amendment Bill 2017, p. 44.
[44]. Section
17 of the Legislation
Act 2003 provides that a rule-maker should undertake appropriate
consultation before making a legislative instrument. A failure to consult,
however, does not affect the validity or enforceability of a legislative
instrument (section 19).
[45]. Regulatory Powers
(Standard Provisions) Act 2014.
[46]. AEC,
‘Disclosure
threshold’, AEC website, 19 May 2016.
[47]. A
Hickman, ‘Election
2016: Liberal in box seat after positive ad campaign’, AdNews, 1
July 2016.
[48]. Criminal Code Act
1995.
[49]. J
Frydenberg, ‘Second
reading speech: Electoral and Other Legislation Amendment Bill 2017’, House
of Representatives, Debates, 30 March 2017, p. 3792.
[50]. M
Turnbull, ‘Malcolm
Turnbull, Bill Shorten election night speeches in full’, op. cit.
[51]. McCloy
v New South Wales (2015) 257 CLR 178, [2015] HCA 34.
[52]. A
Twomey, ‘Proportionality
and the Constitution’, Australian Law Reform Commission website, 8 October
2015.
[53]. The
card was thin cardboard, had text such as ‘Save bulk billing’, and carried an
electoral authorisation for the ACTU on the rear.
[54]. Excluding
the required particulars for certain printed matter.
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