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Commonwealth Electoral Amendment (Protect the Eureka Flag) Bill 2016

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2016

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Commonwealth Electoral Amendment (Protect the Eureka Flag) Bill 2016

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

 

 

Circulated by authority of

Catherine King MP, Member for Ballarat



Commonwealth Electoral Amendment (Protect the Eureka Flag) Bill 2016

 

OUTLINE

 

This Bill would allow the Australian Electoral Commission (AEC) to consider the historical and cultural context of flags and other symbols when assessing their use in political party logos.

 

It is intended to prevent situations where historically and culturally significant flags and symbols are used inappropriately in the logos of particular political parties.

 

It follows a decision by the AEC on 14 October 2016 to approve an application by the Australia First (NSW) party to include the Eureka Flag in its party logo.

 

According to its Statement of Reasons, the AEC had “no discretion to consider historical and cultural claims regarding the use of the Eureka Flag”. Those claims came to the AEC in the form of submissions from various organisations in Ballarat that opposed Australia First’s (NSW) application to use the Eureka Flag in its party logo.

 

The Bill will add the historical and cultural context of flags and other symbols as a criterion under the Commonwealth Electoral Act 1918 (the Act). Section 129A of the Act already allows the AEC to refuse to register a proposed political party logo on various grounds, for example if it is obscene. This Bill adds a criterion, so that the AEC can refuse to register logos where a flag or other symbol is used in a way that is inconsistent with its history or cultural significance.

 

The Bill will also allow any person to object to an existing party logo on the grounds that its use of a flag or symbol is inconsistent with the history or cultural significance of that flag or symbol. This would extend the existing process for objections under Section 134Aof the Act to the new criterion.

 

FINANCIAL IMPACT

 

The bill will have no financial impact.

 

NOTES ON CLAUSES

 

Amendments to the Commonwealth Electoral Act 1918 :

 

1.     Adds a subsection (f) to section 129A of the Act to provide for the AEC to consider whether the use of a particular flag or symbol on a political party logo is inconsistent with the history or cultural significance of that flag or symbol.

 

2.     Repeals the heading of section 134A of the Act and substitutes another to clarify that persons may continue to object to political party logos or names on the grounds that they are misleading.

 

3.     Adds a section 134B to the Act to provide a process for persons to object to existing political party logos that use flags or symbols in a way that is historically or culturally inconsistent:

 

1)     Outlines the circumstances in which a person may object to the use of a flag or symbol on a political party logo and how to proceed with the objection.

 

2)     Specifies the action the AEC must take if it finds in favour of the objector, including actions towards the political party concerned.

 

3)     Explains how the AEC must advise the objector and the wider public of its findings.

 

4)     Defines the parties to the objection.

 

5)     Defines logo

 

4.     Adds a subsection (caa) to section 137(1)(ca) of the Act to account for a situation where a party continues to use a logo in spite of an adverse finding under section 134B of the Act.

 

5.     References the new section 134B(1) of the Act under section 141(1) of the Act, which relates to reviewable decisions.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Commonwealth Electoral Amendment (Protect the Eureka Flag) Bill 2016

 

1. The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

 

2. The Bill amends the Commonwealth Electoral Act to allow the Australian Electoral Commission to consider the historical and cultural context of flags and other symbols when assessing their use in political party logos.

 

Human rights implications

 

3. The bill engages with the following rights and freedoms:

•    Right to freedom of opinion and expression

•          Right to take part in public affairs and elections

 

The right to freedom of opinion and expression

 

4. The rights to freedom of opinion and expression are contained in Article 19 of the International Covenant on Civil and Political Rights (ICCPR). The right to freedom of expression ensures anyone can impart information and ideas of all kinds through any media of their choice. Freedom of expression carries with it special responsibilities and may be restricted on several grounds, as provided for by law and when necessary to protect the rights or reputations of others, national security, public order, or public health or morals.

 

5. The Bill may engage the right to freedom of expression because it places a restriction on certain forms of communication, specifically through political party logos.

 

6. The Bill is reasonable as it seeks only to limit communications in regards to official political party logos registered with the Australian Electoral Commission (AEC). It would not impact upon communications in any broader context or situation.

 

7. The Bill will protect the rights and reputations of others as it will ensure that symbols registered with the AEC are considered in their historical and cultural context. As such the rights and reputations of others will be protected as their symbols are not aligned with inappropriate causes.

 

8. Any limitation imposed by the Bill will be minimised as decisions will only be taken by the AEC following due process and a proper consideration of the history and culture of the symbol in question. The Bill is also analogous to existing restrictions on political party logos, for example that they may not be obscene.

 

The right to take part in public affairs and elections

 

9. The right to take part in public affairs and elections is contained in Article 25 of the ICCPR. This right concerns the regulation of elections and the electoral process and the communication of information and ideas about public and political issues.

 

10. The Bill takes the least restrictive approach in any possible limitation as it does not infringe upon a party’s right to participate in elections or the images they use generally but instead gives the Australian Electoral Commission the ability to consider whether a party’s chosen symbol is in fact representative of that party’s ideals, prohibiting the use of that symbol only if it is culturally or historically inappropriate.

 

11. The Bill may positively contribute to this right by ensuring logo symbols are culturally and historical appropriate. This would address the Human Rights Committee’s General Comments on article 25 which state that “specific methods, such as photographs and symbols, should be adopted to ensure that illiterate voters have adequate information on which to base their choice.” Ensuring that the symbology truly represents the aims of a party will prevent confusion and allow the chosen logos to present “adequate information”.

                                                                                                                                     

Conclusion

 

12. The Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

Catherine King MP