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Thursday, 11 October 1984
Page: 1681


Senator MACKLIN(5.06) — The Electoral and Referendum Amendment Bill 1984 seeks to amend a section in the Electoral Act which was passed by this chamber last year amongst many of the other reforms to the Electoral Act that took place at that time. The intent behind the legislative requirement was to toughen up aspects of the controls over political advertising. The important section with which we are dealing is section 329-as it will be when we finally get the legislation printed, which I understand is likely to be tomorrow-or, in the amending legislation, section 161 (2). I wish to read that section because I think it is extremely important that everybody realises what this chamber is about to do. It states:

A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit or authorise to be printed, published, or distributed, any electoral advertisement concerning a statement-

(a) that is untrue; and

(b) that is, or likely to be, misleading or deceptive.

The definition of an electoral advertisement in this section is:

'Electoral advertisement' means an advertisement that is intended or calculated to affect the result of an election;

Currently, under the Act, a publisher can commit an offence against the Act, or a person who authorises the publication of that type of advertisement can offend under the Act. Under the current circumstances, if a publisher actually publishes something which is untrue and deceptive he has a defence. If he can establish that he did not know and could not reasonably have been expected to know that the advertisement was untrue and misleading, he will not be convicted of any offence under that section.

Many people in the media world, upon reading this and upon seeking legal advice as to what would happen in an election with this law in force, became very worried that they would be in great difficulty. I want to rehearse one line of argument that seems to me to be pretty cogent. If a newspaper, let us take a daily newspaper, published an advertisement from a political party and that advertisement was untrue and deceptive, that publisher would have to prove that he did not know and could not reasonably have been expected to know. If that newspaper tried to use that defence the difficulty it would have would be that it could be argued that the item contained in the advertisement had probably been reported in the columns of the newspaper at some previous stage. That is, the newspaper would have to be sure with respect to each advertisement placed that it had not previously published a story in relation to that item, which with computerisation may not be such a difficult thing in times to come, and that in doing so it could not reasonably be expected to know from its collective memory, as it were, that the advertisement was untrue and deceptive.

When one looks at that type of problem one rapidly comes to the conclusion that the onus we were about to place on publishers, whether in radio, television or newspapers, was unduly onerous and that one really could not expect publishers to have that type of extensive knowledge in the hurly-burly of an election campaign because if they were required to operate with that extensive knowledge base there would necessarily be a delay. In the evidence before the Joint Committee on Electoral Reform it was suggested that that type of delay could very well extend for anything up to a week. If one casts one's mind towards that occurrence one recognises that in an election in which there are likely to be advertisements and counter-advertisements the effectiveness of a counter- advertisement which can operate only at a week's distance may very well be lost. The paradox would then arise that somebody who had published an advertisement which was untrue and deceptive would gain an advantage in law rather than a disadvantage.

So, the Australian Democrats support the proposition that a publisher of such an advertisement ought not to be held liable for that advertisement. In other words, a political advertisement ought to fall within the category of all other advertisements and it should be a reasonable defence for a publisher that he received the advertisement in the normal course of business. In receiving that advertisement, all that publishers were really required to do under the Act was to make sure they had the proper authorisation. I remind the Senate that the Act still demands that they actually take some steps to satisfy themselves that the person purporting to authorise the advertisement actually exists and that, if called to account they can demonstrate that they have taken some steps to satisfy themselves that the person authorising it is indeed authorising it. The Australian Democrats support the proposition to remove the onus from publishers of advertisements in relation to an election campaign. What we do not accept is the next proposition. We do not accept that this Parliament, by passing this legislation, should now say that it will be legal to publish an advertisement which is untrue and deceptive and calculated to affect the result of an election . In the words of the Act, that is precisely what the Opposition parties and the Government are proposing to do. I will say that again because it is fairly staggering: The advertisement has to be untrue and deceptive and calculated to affect the result of an election. I find it absolutely extraordinary that we should even be debating such a proposition.

If one wants to take the wider view, one has to accept that in a democracy there are two basic elements. One is the right of the citizen freely to elect a government and the other is information. I remember the Attorney-General ( Senator Gareth Evans), when in opposition, talking for a long time and often in the freedom of information debate, which debate went on for quite some time, about the value and importance of information. He covered many aspects, one of which was the value of information for the support of democratic institutions. I believe that the points the Attorney-General made when in opposition were true. Information is the lifeblood of any democracy. A democracy cannot exist merely by people being allowed to vote. They must know what is going on. They must be able to make an informed choice. When we look at the basis in reality for an informed choice in the forthcoming election campaign, we must ask: Where will the vast bulk of that information to the ordinary citizen come from? It will come through advertisements by political parties.

I suggest that political parties, therefore, have a very important obligation to the electorate in this type of democracy. One of the obligations they have-it is not a legal obligation but a moral obligation-is to provide to the electorate as much reasonable information as they can which will inform an elector in the making up of the elector's mind about where he or she will cast a vote. The vast bulk of information to the vast number of people who will be voting on 1 December will come from advertisements placed by political parties. I remind the Government that it argued, when arguing for electoral funding, that political parties were responsible for informing the electorate and that that was one of the reasons why political parties should be funded. The Australian Democrats supported the Government in that proposition. Yet now this chamber will say: 'It is legal to publish an untrue and deceptive advertisement which is calculated to affect the result of the election'. Surely it is a denial of one of the basic elements of any democracy to allow anyone that type of liberty.

When the Trade Practices Act and similar types of legislation are discussed, not only in this chamber but also in other parliaments in Australia, one of the points made constantly concerns the privileged nature of information in relation to commercial products; that is, that it is not reasonable to say to the consumer that he should beware, and leave it at that. The Labor Party, at another time and in another place when it was not looking after its own hide, was a champion of those types of consumer rights. In other words, a consumer does have the right to know, when he reads an advertisement from a commercial operator, that that is a reasonable description of the product that he is about to buy. The Australian Democrats support that line too. However, when it becomes a matter of political advertisements a totally different principle is applied. It is not do as I do; it is do as I say. Politicians will have one rule for themselves and another rule for everybody else in the community who is trying to make a living. Politicians will run their own show in a way that suits them, but to hell with everyone else in the community. Surely a very small price to pay for a better informed democracy is that politicians should be required to tell the truth when they put an advertisement in a newspaper or when they put an advertisement on television or the radio. That advertisement is not an off the top of the head, off the cuff, comment. That advertisement is a deliberate act. It is a thoughtful act. It is an act which I assure honourable senators has gone through a large number of checks and balances within any political party. Senator Childs, a Government senator who is sitting here, would certainly know that, being a former Secretary of the Australian Labor Party in New South Wales and a person who has been responsible in the past for a great many election advertisements. He would know that an advertisement is not just something that falls into a newspaper. It is checked and carefully checked. It is a deliberate act.

What we are now saying is that a political party is quite at liberty deliberately to sit down and work out an advertisement which is untrue, deceptive and which attempts to mislead the electorate. There is no worry about that; it is perfectly all right to do that. I am not talking about off the top of the head, off the cuff types of remarks which one could have quoted back at one, such as putting one's money under the bed. I am not talking about those sorts of comments. This Bill is not referring to those sorts of comments. It is referring to deliberate advertisements which are authorised under the Act.

I will take two substantive statements that may be included in an advertisement . This is the first: The Australian Labor Party will introduce a capital gains tax if it wins the 1 December election. Let us also take the statement that the Australian Labor Party's official policy is to introduce a capital gains tax. The first statement would not be caught up under the Act as it currently stands. In other words it is a statement made amongst the political hurly-burly. It is a statement which has almost as much bearing as Mr Peacock's list of broken promises which he issued the other day. It is of that order. Mr Peacock was rightly picked up in his Press conference, for the Australian Labor Party had not done what he had said it had done in government. In other words, Mr Peacock was saying that the Government was going to break that promise in the next Parliament. It is a political debating point; part of the grist for the mill. The ordinary elector knows that it is the type of comment which is thrown around ; it is not the type of comment which is caught under this Act.

However, the type of statement which would be caught up under the Act as it currently stands and which this Government will remove, supported by the Opposition, is a statement such as: 'The Australian Labor Party's official policy document says that it will introduce a capital gains tax when it comes to power'. The only point one can make about that comment is not that it is a debating point; it is that it is untrue. It is deceptive. It is calculated to influence the result of the election. That is what one can say about that comment. It is a comment which would be caught up under this Act as it currently stands and which this Government, supported by this Opposition, will remove.

What are we about now? Why are we debating this legislation today? I will tell honourable senators why we are debating it today. It is because an election is on and the Labor Party, the Liberal Party of Australia and the National Party of Australia want to make this the dirtiest election campaign ever. They are removing the only legislative impediment to making it the dirtiest election campaign ever. That is what we are on about now.


Senator Peter Baume —It is unworkable.


Senator MACKLIN —It is not unworkable. I have just given an example of the only type of statement which would be caught up, that is, that the Australian Labor Party's official documents state that a capital gains tax will be introduced. A statement which will not be caught up, and one which Mr Peacock and Senator Baume can make is: 'The Australian Labor Party will, if re-elected, impose a capital gains tax'. Such a statement will not be caught up. It does not come under this legislation because it is not untrue, deceptive and calculated to affect the result of an election. It cannot be. It is a statement about future intent; hence it is not something which would come under this legislation. That proposition is accepted by the Attorney. If one looks at the evidence that his Department gave to the Joint Select Committee on Electoral Reform one sees that he acknowledges that point.

The next substantive argument is this: If we do not remove this provision people will request injunctions and mess up the whole election operation. I responded to this when I was on the Joint Committee and in my minority report. I now respond with an identical argument, and that is that under the Act the Electoral Commission has been given not simply the power to prosecute if something is brought to its notice. It has been given the power on its own initiative to make sure that this Act is enforced in its totality. It is required to make sure that the Electoral Act and the electoral process in this country is fair and above board. It is required to have that overview on its own cognisance. However, the majority report of the Committee stated that we cannot let the Electoral Commission do that because it would be entering into the political fray. Elsewhere in the Act-it has not been amended-we give the Electoral Commission power. What we are saying is this: The only power, the only area we will exclude from the Electoral Commission, is that relating to electoral advertisements.

Surely it is not too much to ask that in trying to make sure that we move to some type of stable and reasonable democracy, this piece of heinous legislation, of regressive legislation of the worst kind, is not passed now. I appeal to the Opposition parties to think again about supporting such an absurd proposition. I appeal to the Government to look again at this proposition. Why are we doing this? I foreshadow that at the Committee stage I will move an amendment so that this Bill does state only this: 'A person shall not, during the relevant period in relation to an election under the Act, authorise to be printed, published or distributed an electoral advertisement that is untrue and deceptive and calculated to affect the course of an election'. In other words, if my amendment were supported, the only people who would be affected would be the persons or the political parties that set out to deliberately deceive the electorate-nobody else. Yet the Opposition parties and the Government do not want a bar of that. They intend to publish advertisements which are untrue, deceptive and calculated to affect the result of the election, otherwise they would not be bothered in voting for this piece of legislation.


Senator Peter Baume —That is unworthy of you, and it is untrue.


Senator MACKLIN —That is precisely what the Liberal Party, the National Party and the Labor Party intend to do. There is no other reason. Look at the legislation. That is the only page and what is the only operative piece in that legislation? It is to take out section 161 (2). That section does nothing other than to deal with that matter. They can protect the publishers quite simply. They can do so by either adopting the amendment that the Attorney-General put forward to the Joint Select Committee on Electoral Reform when he suggested a way of amending the Act, or, alternatively, adopting the amendment that I have circulated in the chamber. There are many ways of overcoming the problem of the publisher. As I have said, the publisher should not be caught up in this operation. Publishers are going about their ordinary business and should not be expected to have to vet advertisements from political parties. What I find totally abhorrent is the notion that political parties should be allowed to say to the electorate, in a paid advertisement, something which is untrue, deceptive and calculated to affect the result of that election. Surely that is something that we do not need in 1984. Surely it is something that we do not need in a democracy.

We need the truth in a democracy. If Senator Peter Baume wants to interject in respect of this, that is all right. If his party intends to publish only advertisements which are true, which are not deceptive and which are not in that sense calculated to deceive the electorate, he would not even be voting for this . He does not have to do so, because that is all that the Bill already says. The only reason to take out the provision is if one wants to do these things. If one does not want to do them, why bother? The Attorney-General accepts that, in view of the evidence that he gave to the Joint Select Committee. Yet now he is arguing for this absolutely absurd Bill, this retrograde Bill, this Bill which will quite openly say to the electorate for the first time: 'This is what political parties are about. This is what we want to do, and we find, unfortunately, that the legislation will hamper us in that activity, and because of that, we will all join together in a cosy little conspiracy to make sure that we are able to do that.'

I have suggested a simple way of doing it and a way which is in total keeping with the Act. That is that one does not have this imposition on the publisher; one has it only on the political party or the person that authorises the advertisement. That person may well be a company or another individual. The only people who would be allowed to do anything about that would be the Australian Electoral Commission. In other words, I am happy to give away my right, the right of my Party and the right of candidates for our Party to take out injunctions on it. As I have said, in the past I have totally supported the independence of the Electoral Commission. From its own knowledge and understanding of the operation of the Act, it is probably best placed to take any action in relation to an advertisement which either it sees for itself or which is brought to its attention. That is a reasonable proposition.

So I am saying: 'All right; we will give away that right. We will show our bona fides, in that we will not even be able to take out those types of injunctions; it will be out of our hands'. So that cannot be thrown at us. The only thing that we are saying is that every political party should be made, in its paid and deliberately placed advertisements, at last to attempt to be truthful, at least to attempt not to mislead people in the electorate in relation to the information that it is giving them, so that they may have a better informed judgment when they cast their votes on 1 December. Surely that is not too much to ask. Even at this late stage, surely the Government can think about the matter and put if off until we return on Tuesday, and give it more mature consideration over the weekend. Otherwise, this is a most extraordinary, retrograde and heinous step.