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Tuesday, 16 October 1984
Page: 1718


Senator MACKLIN(10.55) — The response by Senator Robert Ray was indeed interesting. However, it did not address the issues that were raised.


Senator Robert Ray —What about the injunction?


Senator MACKLIN —First he talked about the injunction. Obviously he has not bothered to look at my third amendment and he did not bother to listen to my speech during the second reading debate in which I said that we were willing to give away the right of individual injunction and leave it totally to the Australian Electoral Commission. Our bona fides show that we were not interested in having that right. I also went through the argument produced by the majority report, about which Senator Robert Ray has just interjected, and that is that the Australian Electoral Commission already has that right. It was put in there by the Labor Government to give the Commission that right. It already has an overriding right in its own regard. It no longer has to receive a reference; it can take action.


Senator Robert Ray —It was not given that power specifically.


Senator MACKLIN —It is in the Act and in the majority report, the first one. Senator Robert Ray agreed to giving it that power. So did I. Secondly, Senator Robert Ray raised the issues of the Media Council of Australia. I refer to the majority report, which Senator Robert Ray signed, referring to the Media Council . The report says in paragraph 2.36:

Legislative prescription of standards of political advertising is supported by the industry itself. In evidence . . . the Media Council of Australia told the committee that 'The Media Council of Australia supports entirely the intent of section 161 (2) in terms that it produces or tends to produce honest, decent, truthful and legal advertising.

The reference is to page 161 of the transcript. Next, Senator Robert Ray asked why we had not brought in legislation. Frankly, it was a promise made in 1983 by the Government, which introduced that legislation in the amendment Acts last year. The Government was happy with section 161 (2) and Senator Robert Ray voted for it, as we did. Secondly, he said that it could not be done by way of one simple line in the Commonwealth Electoral Act. The Government thought it could do so last year because it introduced the legislation. Senator Robert Ray also thought it could be done last year because he supported the legislation and voted for it.

Senator Robert Ray next went on to deal with an argument that I have addressed on a number of occasions, that if one cannot reform the world one should not start. We do not believe that that is an effective way of dealing with any particular issue. We believe that one has to make a start somewhere, and obviously one starts with those things that are the easiest items to deal with. The easiest items to deal with happen to be advertisements. The reason is that under the Act they have to be authorised. In other words, a deliberate action has to be taken by someone to say that we are promulgating this particular piece of information. That is why the Electoral Act has an authorisation. That exists so that any other individual in the community can say: 'Who takes responsibility for this piece of information?'

Other material, such as throw-away comments on talk-back and so on, are not items that are in any way as easy to deal with; they are much more difficult. If we are to address ourselves to those at a later stage, we will find ourselves with much more complex legislation. The Joint Select Committee on Electoral Reform in its deliberations and in its first report addressed itself as to why it was going to look only at advertisements. It deliberately made the point that it would limit itself to advertisements because they could be dealt with as they had to be authorised. That is why, as Senator Robert Ray knows, having signed the first report, as I did, the Committee decided to consider only advertisements. It was somewhere to start.


Senator Robert Ray —It is not in the first report.


Senator MACKLIN —I am sorry, it is.


Senator Robert Ray —I did not sign the first report. Where is it in the first report?


Senator MACKLIN —Did you not sign the first report?


Senator Robert Ray —No. There was nothing on advertising in that and you know it .


Senator MACKLIN —Senator Ray says he did not sign the first report. I simply refer people to the first report so they can see whether he signed it. We believe that we can reform the world, we can take some step, we can move somewhere. We have to remove the problems, put to us by the Media Council, amongst others, that would be confronted by publishers of advertisements. As Senator Robert Ray knows, the Joint Select Committee on Electoral Reform reconsidered this problem because in a number of submissions from the media it was pointed out that section 161 (2) would be very difficult to deal with. With respect to that section media representatives said: 'We will have to address ourselves to it in a variety of ways. We may have to intrude on campaigning by political parties and hold up advertisements for as long as a week before we can print them because we have to check'. Newspaper representatives said that one difficulty they had was that if they published an advertisement and sought to use that they did not know it was untrue, if they had published some time in the past some story on the item it could very well be held in evidence against them. The majority of the Committee, with whom I agreed, quite rightly said that that was too onerous an obligation to put on publishers of advertisements and would not allow the smooth running of an election campaign. The Australian Democrats agree with that finding. It is not an imposition which can be supported by the media operation.

The inclusion of section 161 (2) in the legislation caused some considerable discussion, to which Senator Ray alluded, during the Committee's hearings by learned counsel about the difficulties of implementing it. I concurred with that . Indeed, if Senator Robert Ray read my speech on the second reading of this Bill he would see that I addressed that quite specifically. I acknowledge the difficulties of implementing this section, in the same way as we acknowledge the difficulties of implementing an enormous range of sections not only in this Act but also in others. In making that point Senator Mason used the example of the Income Tax Assessment Act. I do not think anyone in the community or in business would disagree that it is an enormously complex and difficult Act. We have only to consider section 260 and the debates and discussions that went on around it to see that there was an extraordinary range of legal argument about that section. That argument has been proceeding now for some eight or nine years. The Attorney-General (Senator Gareth Evans) has been involved in it, as have the various special prosecutors and commissioners appointed by him. The previous Government, the Crown Law Office, and, at one stage, the High Court, were involved in it.

There are sections of all Acts which are difficult to implement, but the intent of section 161 (2) of the Act is clear. The only way to find out whether it will hold up is the only way we can find out whether section 260 would hold up-that is, test it in the courts. In the same way that we criticised the previous Government for not testing in the courts section 260 of the Income Tax Assessment Act, we would also criticise this Government if section 161 were not tested in the courts. If it turns out to be deficient, if we accept various arguments presented on one side or the other, then the Government and this Parliament would address themselves to the result of that court case. It would address itself to how we would then need to refine and reform that section. I do not believe it is beyond the wit of the Attorney-General and his Department to come up with a solution to any problems that may be posed by a subsequent court case that found this provision deficient in some respect. At least if it is left in the intent of the Parliament remains clear. The intent of the Parliament, if my amendment were accepted, would be to place an obligation on a political party , an individual or a company that authorised an advertisement to ensure that that advertisement is not untrue or deceptive in such a way as to affect the result of an election.

That seems to us to be a good intention. We believe that the Government's intention was good when the electoral legislation was passed last year. I again point out that this provision was put into the legislation by this Labor Government. It was not in the legislation before this Government came to power. It was introduced into the legislation, we believe, in fulfilment of a promise that the Government made at the last election. That seemed to us quite reasonable. In the light of subsequent submissions made to us by the various media councils that there were difficulties in relation to this matter, the item was put aside. We believe that if the amendments that I have circulated are accepted that intent will remain strong. It will remain there as a check if someone transgresses the legislation in relation to a factual matter.

I refer to the point that Senator Robert Ray made in this regard. The Australian Labor Party published an advertisement last week. I am quite happy to use that advertisement as an example. The advertisement asked: 'Will facts change a Liberal voter's mind?' It was asking: Will facts change a person's mind ? Senator Robert Ray said: 'We cannot distinguish between facts and opinions'. I think we can. The Australian Labor Party, in placing large advertisements, thought we could. It was saying to the people who read those advertisements: ' Here are some facts about our economic record. Read them and vote on them'. I would have thought it was in the interests of the Australian Labor Party in that regard to be able to say: 'They are facts because if these statements were untrue and deceptive we would not be allowed to put them in'. I would have thought that was a pretty good back-up to a campaign that anybody was about to launch. In no way are our amendments simplistic. The Australian Democrats are not putting a proposal; we are merely saying: Let us stay with the Australian Labor Party's original proposal in regard to political parties. I remind Senator Robert Ray that we do not have to defend that. It was not our proposal; it was that of his Party.