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Tuesday, 16 October 1984
Page: 1712


Senator MACKLIN(10.20) —The last time the Committee met we were discussing amendments that the Government had moved to the Electoral and Referendum Amendment Bill 1984 with regard to advertising. I had moved two amendments the effect of which would be to take out of the relevant section in the principal Act the following words 'print, publish or distribute, or cause, permit or'. The effect of those amendments would be that newspapers, television and radio people would not come under the Act for the purposes of this section, rather than do what the Government has moved in this Bill, which is to exempt not only the proprietors of the mass media but also political parties themselves . As I said during the second reading debate, the effect of this legislation, if allowed to stand in its entirety, will be that political parties can quite deliberately conceive advertisements, which they then place in the mass media, which are untrue, deceptive and calculated to affect the result of an election. In other words, we are taking out of the Act the ability of the law to stop those types of deceptive advertisements. I should like to make it very clear that it is a very stiff test to which these advertisements are being put. They have to be untrue, misleading and calculated to affect the result of an election .

I also said during the second reading debate that if one looks at the various types of statements which may be caught by this legislation, one sees that it is possible that a whole range would not come under this legislation. That was acknowledged by the Attorney-General (Senator Gareth Evans) when he gave evidence to the Joint Select Committee on Electoral Reform. The types of statements which purport to be statements about future intentions-that is, that the Australian Labor Party, if returned to government, will do X, Y or Z-would not be caught under the legislation as it now stands. The legislation would catch only a narrow band. It would catch those types of advertisements which say : 'In the party platform of the Australian Labor Party, it says that it is going to introduce a capital gains tax'. Let us take that as an example. That is definitely untrue. It is not a matter of political debate or a matter of forecasting future intentions, which would not be caught by the Act. It has one meaning only. It is untrue. It does not happen to appear in those types of documents.

It has been argued by the Attorney, in his response to the second reading debate, that because we cannot catch everything, because we do not capture those types of statements about future intent, we should not bother with this. In other words, if we cannot reform the total world, let us not start; let us not even bother to put our foot upon the path of cleaning up political advertising, because we cannot do it all. It is an absurd argument which is unworthy of an Attorney-General. In any reform we have to start somewhere. We have to move slowly. We have to do what is able to be done under the legislation. In this circumstance what the Labor Party intends to do, with the support of the Liberal Party and the National Party, is to allow in this election campaign those parties to publish untrue and deceptive advertisements calculated to affect the result of the election. In other words, they are clearing the legislative hurdles so that they can have a free go. That is fine, but I think everyone in the electorate ought to know that is precisely what they are doing. That is precisely what they are setting out about.

We believe that the Commonwealth Electoral Act has been drawn too widely because it has caught up people who publish political advertisements. We do not believe that those people should be caught up. Often they are unable to know whether a particular item is true or whether it is deceptive. They should be required to know because to do so they would have to intrude themselves into political judgments. We say that they should not be required to do that. That is why my amendment, if carried, would eliminate the publishers and the printers of the mass media or those who broadcast or televise. I do not believe the political parties should be exempt from trying, as much as they can, to make their advertisements true and not misleading and deceptive. We have put an imposition on other people out in the community to do this when they publish advertisements. We say: 'You should make true advertisements'. Why do we say that? We say that a person who produces an advertisement on a particular commodity should be truthful because the consumer does not have all the information. Very often it is privileged information. The consumer is not in a position to be able to work out whether a motor car does X, Y or Z. Most consumers do not have access to that type of information. It is privileged.

Most electors do not have access to the type of information about which we are talking that will appear in these commercials. For example, let us consider the commercial that was published by the Australian Labor Party last week. How many electors have access to that detailed economic information? There are very few. What they are relying upon is that what the Australian Labor Party puts in its advertisements is true. I would have thought that the Labor Party, the Liberal Party and the National Party would want the electorate to know that what they were publishing was true and that there were legislative guarantees that it had to be true. I would have thought it was in their interests to do that. But instead they are going to go into a lavish, multimillion dollar campaign exercise to try to get rid of the very thing that makes it true, the very thing that gives it veracity; that is, the legislative guarantee that when they actually publish that advertisement the ordinary elector can rely on the veracity of the material contained in it.

A democracy relies on two things: The first is the ability of people to have a free vote and express their free determined will as to who shall govern them in the next parliament, and the second, which is equally important, and on which democracy stands, is information. Without information a democracy is dead. Yet this Committee is now being asked to support a piece of legislation which, although it does not go all the way, at least makes a step upon the road. At least it says to political parties, when they sit in their back rooms with their highly paid multimedia consultants and devise an advertisement, that they have to have an additional thought in their mind, according to the legislation that currently stands; that is, they have to ask: 'Is this true?'. That seems to me to be a fair question to ask a political party to address itself to. It is fair to ask: 'Is this advertisement that the Australian Labor Party put in the papers on Thursday true? Are those accurate economic statistics?'. I would have thought that a political party would be very happy to have a legislative guarantee, to be able to say: 'It is true. It would be against the law to publish something that was untrue and deceptive.' People could then rely upon that assurance and could use the information published in making up their minds when they cast their vote.

This Bill would enable the publication of an advertisement provided it was not defamatory or such like of individual people, provided it was of the type that the Australian Labor Party has already published. The Government now wants to be able to say: 'We can publish advertisements of that kind regardless of whether they are true. It does not make any difference'. The advertisement which was published last week fell under provisions of the Commonwealth Electoral Act as it currently stands, but what about advertisements which will be published next week when this Bill has been passed with the support of the Opposition parties- the Liberal Party and the National Party? People will not be able to rely upon the veracity of political advertisements.

Last year the Government made a big advance on this issue. It took a step in the right direction. It has now got cold feet. It has now decided to withdraw. One has to ask: Why has it decided to go backwards on that legitimate reform? Why does it not want to compel political parties to guarantee the veracity of their advertisements? Is it because it is too difficult for the Labor Party to draft true advertisements? If it is going to print advertisements which are true and not deceptive and misleading, why is it worried about the existing legislation? If my amendments are not carried and this Bill is passed I believe that not only will the publishers of those items not be caught but also political parties will be freed from the yoke of having to worry about the truth of their advertisements.

The argument has also been presented that it is too complex and too difficult to sort out one item from another in section 161 (2) of the Act, to which my amendments relate. I has been said that it would be too difficult for the courts to address themselves to this issue. That proposition has been canvassed in the majority report of the Joint Committee on Electoral Reform. That proposition was based, so the Committee argued in its majority report, upon evidence given to it . I suggest that the evidence given to the Committee indicated nothing of the sort. Certainly, there was evidence to the effect that there are difficulties in this as there are in every item of the law.

One has only to go into a court on any day to listen to the arguments put by learned counsel on law which to the average lay person looks pretty simple, which looks as though it means what it says, and after one has sat in the court for half an hour one suddenly discovers it probably does not mean anything of the sort. Every area of the law is like that. I am sure that the legal person who appeared before the Joint Committee would be capable of arguing in such a manner not only with this Act but with every other Act to which he may have been asked to address himself. I ask: Is it any more difficult to separate fact from fiction in this area of law than it is in the area of criminal law in general, in defamation law, in libel or custody cases? Are these areas more or less difficult? What about intellectual property cases? Are they more or less difficult than this area of law? There are difficulties in separating fact from fiction and fact from opinion in any area of the law. Why should we say: 'This area is too difficult. Let us not make a start'?

I believe we ought to accept the amendments that I have moved. We should take the undue onus off the publishers of such material, leave it on the political parties and see what will happen. My prediction is that if these amendments and my subsequent amendment, amendment No. 3, were carried we would have very little difficulty. One of the things that would certainly occur is that for the first time the backroom people would be addressing themselves to an additional question, that is, the truth of their advertisements, whether they were seeking to deceive or influence the electorate in a way which was misleading or deceptive or likely to be misleading or deceptive.

The reform made last year was reasonable and ought to be allowed to stand now. If my amendments are not accepted, I believe that we will have gone backwards and not forwards in trying to get clean and reasonable debate going which can inform electors about policies and issues they are concerned about during an election campaign in the area from which they get most of their information, that is, advertisements published by political parties. That is the area from which most electors find out most when they are making up their minds. Because of the gravity of this issue, we ought to accept the amendments I am proposing.