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Thursday, 11 October 1984
Page: 1691


Senator GARETH EVANS (Attorney-General)(6.11) —I shall resist the temptation to range at large over all the matters dealt with by Senator Walters because very few of them had anything to do with the Bills that are before us. There are two Bills, and only two points of substance have been raised relating to them in the course of the debate. So far as the Electoral and Referendum Amendment Bill is concerned, the objection is from the Australian Democrats as to that part of the legislation which would repeal the provision in the Commonwealth Electoral Act prohibiting false and deceptive advertising. I acknowledge that there was a great deal of merit in what Senator Macklin said on this subject. Indeed, I could hardly say otherwise because what he said was drawn substantially from my evidence to the Joint Committee on Electoral Reform. It was my song, or my former song that was being sung by Senator Macklin and he sang it very well.

I have to say, however, that on balance and after very careful consideration of all the arguments raised by Senator Macklin, the Joint Committee came out against the proposition he advanced. The position has been accepted by the other major parties and, I believe, in good faith and with substantial reason. It is generally accepted that the provisions are unworkable in their present form. The question goes to whether they are capable of amendment to make them more effective. It is a matter for argument whether they can be made more effective. It has to be acknowledged, when one looks at the very detailed treatment given to this matter by the Joint Committee, that a number of points of real difficulty exist in any possible formulation of this proposal. The basic difficulties tend to arise in the area of determining whether a statement in question is capable of being true or false. That raises particular difficulties when one is talking about statements of opinion and, more particularly, statements in the nature of predictions that X party will do Y, which are the essence of, and staple to, electoral discourse.

It is probably the case that the most damaging of the misrepresentations that can occur in a campaign would, if Senator Macklin is correct in his analysis of what is and what is not a statement of fact, be excluded from the operation of the legislation. That is a point made with a great deal of vigour and conviction by the majority members of the Committee. The general position that has been adopted is that after weighing up the principles of free speech, letting a hundred flowers bloom and all the rest of the things that need to be taken into account on the side of deregulation in this area, as against on the other hand the damage that might be caused as a result of deliberately deceptive advertising, that balance ought to come down on the side of free speech. That was the balance struck by the majority of the Committee and that is what has been accepted by the Government.

The position has been accepted that judgments as to truth and falsity should remain ones for the voter to make and that it is probably in the most exceptional circumstances that voters will be unlikely to detect the difference between a piece of self-serving puffery on the one hand and something which is more iniquitous or more insidious on the other.

A further consideration that has been taken into account by the Government in coming down on the side of this repeal is that the defamation law exists and provides an effective avenue or potentially effective avenue for those with a cause of such action as a result of some peculiarly malicious or odious piece of false representation. It is not as if the political party in question or the candidate in question is left entirely naked and defenceless in that situation. There are opportunities for some forms of injunctive relief, even the law of defamation of which Senator Haines will be well aware, with her new found legal skills. In this respect, although it is acknowledged that it is a matter of balance and is not an absolutely clear cut choice to be made here, on balance we come down on the side of this repeal and I hope the Democrats will appreciate and accept it with all the grace they can muster when the democratic process takes its course, as seems likely in five minutes time in this chamber.

The other Bill that is the subject of discussion here today is the Christmas Island Administration (Miscellaneous Amendments) Bill. The nub of the attack on that Bill was confined to the proposal that for the purposes of voting in Australian elections, Christmas Island is to be taken as part of the Northern Territory. Some rather extravagant language employed by Senator Kilgariff might lead a reader of his contribution to think that the integration proposed with the Northern Territory is much more far reaching than that associated with the operation of the Electoral Act. That, of course, is not the case. The particular objection to the Northern Territory electorate being employed as the vehicle for allowing Christmas Island people to vote in Australia was much canvassed in the debate in the House of Representatives.

The main arguments have all been repeated here today. The essential argument has been that Cocos before it and now Christmas have a great affinity with Western Australia; their transport and communication links are with that State. Many former Christmas Islanders as with Cocos Malays now live in that State. The point that has to be made, however, and made strongly-this is not merely a technical matter-is that the incorporation of a territory within the boundaries of a State for the purposes of voting would require a referendum to amend the Constitution. The only alternative, accordingly, to the use of the Northern Territory as the vehicle would be to include Christmas Island in the Canberra or Fraser electorates in the Australian Capital Territory. Whatever approach one adopts to this matter, it is clearly evident that the Australian Capital Territory electorates are much more inappropriate than ever the Northern Territory could be argued to be on the grounds of remoteness and lack of community of interest. The other points that can be made about the propriety of the association of Christmas and Cocos islands with the Northern Territory are that the Northern Territory has similar education, health, transport and communications problems as has Christmas Island; that the Northern Territory has a number of Chinese and Malays in its population, like Christmas Island; and that, at a more technical level but nonetheless significant from the point of view of the overall argument about the relationship, the Supreme Court judge for Christmas Island is a judge of the Supreme Court of the Northern Territory.

The point that was pressed by Opposition speakers on this matter, however, went further than simply arguing about the inappropriateness of the link. It was more a question of an alleged lack of consultation with the Christmas Island people in order to determine their state of mind. The point needs to be made, however, and made very strongly, that inclusion of Christmas Island in the Northern Territory electorate is something that is well understood as a proposition by the people of Christmas Island and particularly by the Union of Christmas Island Workers, to which most adults on the island belong and which has been the main organisational vehicle through which these things have been discussed. I am advised that a great deal of discussion has taken place on this subject, as with all the other matters that are the subject of this legislation, between the island residents, the Minister and departmental officers, and the question of incorporation in the Northern Territory for voting purposes is simply not controversial among the Christmas Islanders. They recognise the force of many of the points that I have just made about the same sorts of problems existing in the respective locations and there is a very real sense in which they not only understand but also accept the desirability and good sense of this occurring.

The further point that was made by Senator Kilgariff about the implications for the Northern Territory, in turn, of this integration for voting purposes was, I think, very extravagantly made. The Prime Minister (Mr Hawke) has already written to the Chief Minister of the Northern Territory saying that the placement of Christmas Island and, for that matter, Cocos Island, in the Northern Territory electorate will be reviewed should the constitutional position of the Northern Territory change in the future. Of course, the occasion of that change would be an appropriate occasion for any referendum that might need to be held to relocate the Christmas Islanders and Cocos Islanders in some other State constituency, should it become apparent that that is the proper course to follow.

The difficulty about not putting them in the Northern Territory-rejecting simultaneously the idea that they should go into the Australian Capital Territory, which I do not think appeals to anyone-is that a referendum would be immediately demanded. Whatever one thinks of the processes of this place, it is highly unlikely that such a referendum could be geared up within the immediate future. The people of Christmas Island and Cocos Island would be very upset if they could not vote in the next Federal election because of a delay that would be caused through having to wait for some referendum process to take its course, quite apart from all the expenses that would be associated with the running of such a referendum. They are keen to participate-God knows why sometimes when I look around this chamber-in the Australian democratic process and that opportunity should not, with respect, be denied them.

I am sure that one of the reasons why so much passion has been engendered on this topic on the other side of the chamber is that the Opposition has a pretty fair idea of how the Christmas Islanders are likely to vote in any forthcoming election that might be imagined. I can imagine why there should be alarm in particular at the prospect of their being incorporated in the Northern Territory constituency when I recall, as I hope some others in the chamber will do, that it was Mr Everingham after all who proposed not so long ago that Christmas Island be turned into a staging camp for refugees from South East Asia. In those circumstances, just before the forthcoming election might well be thought not the most impeccable occasion for the Christmas Islanders to be incorporated into the Northern Territory electorate. I can understand the passion that Senator Kilgariff and some others have felt on that topic, but it is a passion which is not well founded in any principle that can possibly be acknowledged in this place. I accordingly urge the Senate when we come to the second reading to accept this legislation in the form in which it is now before us and to reject the second reading amendment as proposed by the Opposition.

Question resolved in the affirmative.

Bill read a second time.