6101

2008-2009-2010

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

Electoral and Referendum Amendment (Close of Rolls and Other Measures) Bill 2010

 

(Amendments to be moved by the Leader of the Australian Greens, Senator Bob Brown, in committee of the whole)

 

(1)     Page 70 (after line 5), after Schedule 6, insert:

Schedule 6A—Amendment relating to automated telephone calls

Commonwealth Electoral Act 1918

1  After subsection 328A

Insert:

328B  Automated telephone calls

             (1)  A person commits an offence if, during the relevant period in relation to an election under this Act:

                     (a)  the person authorises the use of automated telephone calls containing electoral matter; and

                     (b)  such calls are made to electors; and

                     (c)  the calls are intended to affect the casting of votes in the election.

Penalty: 

                     (a)  if the offender is a natural person—$1,000 or 6 months’ imprisonment; or

                     (b)  if the offender is a body corporate—$5,000.

             (2)  If the Electoral Commissioner is satisfied that during the relevant period in relation to an election under this Act a person has authorised the use of automated telephone calls containing electoral matter, the Electoral Commissioner may request the person:

                     (a)  to withdraw authorisation for those calls; and

                     (b)  to take all steps necessary to ensure that no further such calls are made.

             (3)  In proceedings for an offence under this section, the court may take into account a person’s response to a request under subsection (2) in assessing any penalty to which the person may be liable.

             (4)  If the court is satisfied, in proceedings for an offence under this section, that during the relevant period in relation to an election under this Act a person has authorised the use of automated telephone calls containing electoral matter, the court may make any order it considers appropriate in relation to the authorisation of those calls, including an order that the person:

                     (a)  withdraw authorisation for those calls; and

                     (b)  take all steps necessary to ensure that no further such calls are made.

             (5)  In this section:

automated telephone call means a telephone call which, when it is connected, automatically plays to the receiver of the call an audio message.

2  Application of amendment

            The amendment made by item 1 applies in relation to elections the writs for which are issued on or after the commencement of the amendment.

 [automated telephone calls]

(2)     Clause 2, page 2, at the end of the table, add:

4A.  Schedule 6A

The day this Act receives the Royal Assent

 [automated telephone calls—commencement]

(3)     Page 70 (after line 5), after Schedule 6, insert:

Schedule 6B—Amendment relating to misleading or deceptive publication

Commonwealth Electoral Act 1918

1  Subsection 329(1)

Repeal the subsection, substitute:

             (1)  A person commits an offence if:

                     (a)  the person either:

                              (i)  prints, publishes or distributes; or

                             (ii)  causes, permits or authorises to be printed, published or distributed;

                            an electoral advertisement; and

                     (b)  the electoral advertisement is intended to affect voting in an election; and

                     (c)  the electoral advertisement contains a statement purporting to be fact that is inaccurate and misleading to a material extent.

2  Subsection 329(5)

Omit “matter or thing was likely to mislead an elector in relation to the casting of a vote”, substitute “statement to which the offence relates was inaccurate and misleading to a material extent”.

3  Subsection 329(6)

Repeal the subsection, substitute:

             (6)  In this section:

advertiser , in relation to an electoral advertisement, means the person who authorised the advertisement.

electoral advertisement means any matter or thing containing electoral matter that is printed, published or distributed during the relevant period in relation to an election under this Act, and may include written documents, audio recordings, video recordings and multimedia material.

publish includes publish by radio, television or telephone or on the Internet.

4  At the end of section 329

Add:

             (7)  If the Electoral Commissioner is satisfied that an electoral advertisement contains a statement purporting to be a statement of fact that is inaccurate and misleading to a material extent, the Electoral Commissioner may request the advertiser to do either or  both of the following:

                     (a)  withdraw the advertisement from further publication;

                     (b)  publish a retraction in specified terms and in a specified manner and form.

             (8)  In proceedings for an offence under this section arising from an electoral advertisement, the court may take into account the advertiser’s response to a request under subsection (7) in assessing any penalty to which the advertiser may be liable.

             (9)  If the court is satisfied that an electoral advertisement contains a statement purporting to be a statement of fact that is inaccurate and misleading to a material extent, the court may order the advertiser to do either or both of the following:

                     (a)  withdraw the advertisement from further publication;

                     (b)  publish a retraction in specified terms and in a specified manner and form.

           (10)  In proceedings for an offence against this section:

                     (a)  an electoral advertisement that includes a statement that its publication was authorised by a specified person; or

                     (b)  an electoral advertisement that includes a statement that it was printed by or on the instructions of a specified person; or

                     (c)  an apparently genuine document purporting to be a certificate of the Electoral Commissioner stating that the Electoral Commissioner made a request for the withdrawal of a misleading advertisement or the publication of a retraction;

is evidence of the matter stated.

5  Application of amendments

            The amendments made by this Schedule apply in relation to elections the writs for which are issued on or after the commencement of the amendments.

 [misleading or deceptive publication]

(4)     Clause 2, page 2, at the end of the table, add:

4B.  Schedule 6B

The day this Act receives the Royal Assent

 [misleading or deceptive publication—commencement]