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Marriage Law Survey (Additional Safeguards) Bill 2017

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2016-2017

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

THE SENATE

 

 

 

 

MARRIAGE LAW SURVEY (ADDITIONAL SAFEGUARDS) BILL 2017

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Finance, Senator the Hon Mathias Cormann)

 

 



MARRIAGE LAW SURVEY (ADDITIONAL SAFEGUARDS) BILL 2017

 

GENERAL OUTLINE

1.                    Same-sex marriage continues to be a matter of public interest in Australia. Given the diverse range of community views, the Australian Government has committed to holding a national survey that would ask Australians if they support same-sex marriage (the survey).

2.                    The Australian Bureau of Statistics (ABS) has a strong commitment to the privacy, confidentiality and security of the information it collects.  It has strong legislative protections that safeguard the information it holds and a proud history of maintaining community trust in the way it collects, uses, discloses and stores information.  

3.                    Further, there are existing measures, across different legislative frameworks, which already protect the integrity of the survey process.  For example:

·          The Census and Statistics Act 1905 (the Census and Statistics Act) requires that the results of the compilation and analysis of information supplied to the ABS cannot be published or disseminated in a manner that is likely to enable the identification of an individual.  The Census and Statistics Act also makes it an offence for any past or present ABS officer to divulge, either directly or indirectly, any information given under the Act other than in accordance with a determination or for the purposes of this Act.  This offence carries a penalty of up to a $25,200 fine, imprisonment for up to two years, or both.  Additionally, every ABS officer must sign an undertaking of fidelity and secrecy, under the Census and Statistics Act. Seconded officers to the ABS are treated the same as ABS officers by law and must also sign an undertaking of fidelity and secrecy.

·          The Australian Bureau of Statistics Act 1975 (the ABS Act) establishes the ABS as an independent statutory agency.  The ABS operates independently from governments when undertaking statistical collection activities to ensure that ABS statistics remain objective and impartial.   The ABS Act requires that the Statistician control the operations of the Bureau.  The ABS received a Statement of Expectations from the Treasurer in 2015, and responded through a Statement of Intent. It is a requirement that government agencies abide by a Statement of Intent.  The ABS Statement of Intent states:

‘The Australian Statistician and the ABS will continue to operate independently and objectively in performing its day-to-day business in a way that maintains its reputation as a world-class statistical agency…The staff of the ABS are persons engaged under, or whose services are made available in accordance with  arrangements made under, the Public Service Act 1999 . These staff must comply with the provisions contained in this Act which includes a description of the acceptable behaviours of Australian Public Servants.’

·          The best practice obligations set out in the Organisation for Economic Co-Operation and Development’s (OECD) ‘Recommendation on Good Statistical Practice’ (the OECD Best Practice), have been adhered to by the Australian Government since 2015. 

·          The Criminal Code Act 1995 (Criminal Code) establishes mail and telecommunications offences.

·          There are obligations on officials conducting the survey under the Census and Statistics Act, the Public Service Act 1999 and the Privacy Act 1988 .

4.                    The Marriage Law Survey (Additional Safeguards) Bill 2017 (the Bill) complements these existing measures to ensure that the survey has a comprehensive suite of safeguards.  In summary, the Bill:

(a)     promotes the expression of free and informed views in the statistical collection process by enhancing transparency, accountability and traceability around communications of marriage law survey matters;

(b)    requires authorisations to be included on all forms of communication of ‘marriage law survey matter’ , including printed material, voice call and text messages, and online communication of such matter ;

(c)     provides the Electoral Commissioner with information-gathering powers in relation to the authorisations requirements;

(d)    applies broadcasting provisions from the Broadcasting Services Act 1992 (the Broadcasting Services Act), the Australian Broadcasting Corporation Act 1983 (the ABC Act) and the Special Broadcasting Service Act 1991 (the SBS Act) requiring the broadcasters, where they broadcast marriage law survey matter expressing a view in relation to the survey, to provide reasonable opportunities to any person or organisation holding an opposing view to broadcast material in relation to same-sex marriage and the survey process;

(e)     sets out offences for bribery and threats, and makes clear that the Statistician and officers of the ABS are not to engage in conduct with the intention of influencing the content of a marriage law survey response provided to the Statistician;

(f)     provides for civil penalties in relation to conduct such as vilification, interference or discrimination and misleading or deceptive publications relating to the completion of the marriage law survey;

(g)     provides injunctive relief in relation to the statistics collection process and related activity; and

(h)    enables the Electoral Commissioner to make rules, by legislative instrument, prescribing certain matters.

 

Financial impact statement

5.                    The Bill will have a minimal financial impact on a person or organisation that engages in a marriage law survey matter, or broadcasters that broadcast marriage law survey matter. Administrative costs may arise for the Electoral Commissioner as a consequence of administering the provisions of this Act, however these are not quantified. This is because there is no clear basis for determining the probability of, for example the Electoral Commissioner pursuing individuals or organisations in order to impose civil or criminal penalties.   

Statement of compatibility with human rights

6.                    A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill and assesses that the amendments are compatible with Australia’s human rights obligations.



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

 

Marriage Law Survey (Additional Safeguards) Bill 2017

This 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

1.                 The Marriage Law Survey (Additional Safeguards) Bill 2017 (the Bill) ensures that the survey has a comprehensive suite of safeguards in place to allow the expression of free and informed views, to allow persons to hold and express views without being vilified and ensures the public communications are clearly authorised, so people know who is communicating with them, and to prevent undue influence through bribery, threats and misleading or deceptive publications.  In summary, the Bill:

(a)     promotes the expression of free and informed views in the statistical collection process by enhancing transparency, accountability and traceability around communications of marriage law survey matters;

(b)    requires authorisations to be included on all forms of communication of marriage law survey matter, including printed material, voice call and text messages, and online communication of such matter;

(c)     provides the Electoral Commissioner with information-gathering powers in relation to the authorisations requirements;

(d)    applies broadcasting provisions from the Broadcasting Services Act 1992 (the Broadcasting Services Act), the Australian Broadcasting Corporation Act 1983 (the ABC Act) and the Special Broadcasting Service Act 1991 (the SBS Act) requiring the broadcasters, where they broadcast marriage law survey matter expressing a view in relation to the survey to provide reasonable opportunities to any person or organisation holding an opposing view to broadcast material in relation to same-sex marriage and the survey process;

(e)     sets out offences for bribery and threats, and makes clear that the Statistician and officers of the ABS are not to engage in conduct with the intention of influencing the content of a marriage law survey response provided to the Statistician;

(f)     provides for civil penalties in relation to conduct such as vilification, interference or discrimination and misleading or deceptive publications relating to the completion of the marriage law survey;

(g)     provides injunctive relief in relation to the statistics collection process and related activity; and

(h)    enables the Minister to make rules, by legislative instrument, prescribing certain matters.  

 

Human rights implications

2.                 This Bill engages the following rights as provided for in the International Covenant on Civil and Political Rights (ICCPR):

·          the right to take part in public affairs, directly or through freely chosen representatives, as contained in article 25 of the ICCPR;

·          the right to freedom of opinion and expression, as contained in article 19 of the ICCPR;

·          the prohibition on interference with privacy and attacks on reputation, as contained in article 17 of the ICCPR; and

·          the rights of equality and non-discrimination, as contained in articles 2 and 26 of the ICCPR.

3.                 The right to freedom of expression includes the right to receive and impart information and ideas of all kinds using any media. Article 19(3) of the ICCPR explicitly states that the exercise of this right carries with it special duties and responsibilities. Accordingly, it may be subject to certain restrictions provided that the restrictions are provided by law and are for respect of the rights and reputation of others. Articles 2 and 26 protect against differential treatment on the basis of gender, religion, political or other opinion, or other status.

Authorisations

4.                 The requirement for authorisations, as set out in the Bill, restricts anonymous political speech in limited circumstances, and, in doing so, engages the rights specified above. The restrictions are objective, legitimate and proportional because they:

·          are provided for by law;

·          serve a genuine public interest by protecting the free, fair and informed survey process, which supports the exercise of the right to freedom of expression;  

·          support the right to protection against unlawful attacks on reputation; and

·          apply to an objectively defined group of persons who freely choose to play a public role in political debate.

5.                 There is a strong public interest in ensuring that survey participants are aware of who is communicating to them without adversely impacting public debate. The authorisation requirements facilitate transparency and public confidence in the survey process. They enable survey participants to assess the credibility of the information they rely on when forming their views in relation to the questions asked in the survey.

6.                 Ultimately, this Bill facilitates free and informed participation in the conduct of public affairs, through the survey process.  This participation is a vital component of Australia’s democratic systems. The strong public interest in achieving these objectives outweighs the rights to privacy of those covered by the authorisation regime who might wish to communicate anonymously to influence a survey response.  Further, the Bill’s restrictions on anonymous communications supports the right of participants in public debate to protection against unlawful attacks on reputation.



Obligations on broadcasters

7.                 The Bill would apply certain broadcasting provisions from the Broadcasting Services Act, and extend similar obligations to the ABC and the SBS to the survey to require broadcasters who broadcast survey matter expressing a view in relation to same-sex marriage and the survey process to give reasonable opportunity to broadcast opposing views. This requirement is time limited. Broadcasters will also be provided, where relevant and appropriate, an extra minute of non-program time to facilitate this requirement. 

8.                 On this basis, the Bill would promote the right to freedom of opinion and expression by ensuring that broadcasters cannot selectively broadcast only one side of the debate, allowing both sides of the debate the opportunity to broadcast in relation to the survey. While this requirement may affect the editorial independence of broadcasters, the requirement would be time limited. The impact on broadcasters would be balanced with the promotion of the rights to freedom of opinion and expression.

Protections against discrimination in relation to political views

9.                 The Bill contains provisions protecting against vilification on the basis of directly expressing a political view. Similarly, the Bill protects those who indirectly express a political opinion by making a financial contribution to a participant in public debate from recrimination, such as social or economic exclusion, or other forms of intimidation. In this way, the Bill gives direct effect to the rights to equality and non-discrimination contained in articles 2 and 26 of the ICCPR, and indirectly supports the right to take part in public affairs in article 25 of the ICCPR.  

Offence and civil penalty provisions

10.             The Bill establishes offences for bribery, threats, and makes clear that the Statistician and officers of the ABS are not to engage in conduct with the intention of influencing the content of a marriage law survey response provided to the Statistician.  The Bill also includes civil penalty provisions in relation to conduct relating to vilification, interference and discrimination and misleading or deceptive publications. These provisions would only apply for a limited period of time.  The Bill’s civil penalty provisions do not constitute a criminal penalty for the purposes of human rights law as they are not classified as criminal under Australian law and are restricted to people in a specific regulatory context.

11.             These provisions may operate to limit the freedom of opinion. However, conduct that interferes with or hinders a person’s provision of a response is prohibited, thereby promoting the freedom of opinion. Any limitation is reasonable and necessary to the objective of ensuring that people are able to discern the source of political communications in order to form and express their political views, free from undue influence immediately prior to completing the survey. The limitations are reasonable and necessary to ensure that the survey accurately reflects the views of the Australian public.

12.             These limitations are proportionate. They only restrict an individual’s freedom in very specific circumstances for a limited time period, and do not restrict freedom of expression in relation to the survey more broadly. They do not prevent individuals from lawfully attempting to influence a person’s response to the survey through advertising, political debate and other means in the period leading up to the publication of survey information.

 

Conclusion

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



MARRIAGE LAW SURVEY (ADDITIONAL SAFEGUARDS) BILL 2017

 

NOTES ON CLAUSES

Glossary

1                     The following abbreviations and acronyms are used throughout this explanatory memorandum:

Abbreviation

Definition

ABC

Australian Broadcasting Corporation

ABC Act

Australian Broadcasting Corporation Act 1983

ABS

Australian Bureau of Statistics

ABS Act

Australian Bureau of Statistics Act 1975

ACMA

Australian Communications and Media Authority

AEC

Australian Electoral Commission

Broadcasting Services Act

Broadcasting Services Act 1992

Census and Statistics Act

Census and Statistics Act 1905

Census Direction

Census and Statistics (Statistical Information) Direction 2017

Criminal Code

Criminal Code Act 1995

Electoral Act

Commonwealth Electoral Act 1918

OECD

Organisation for Economic Co-Operation and Development

OECD Best Practice

OECD ‘Recommendation on Good Statistical Practice’

Regulatory Powers Act

Regulatory Powers (Standard Provisions) Act 2014

SBS Act

Special Broadcasting Service Act 1991

SBS

Special Broadcasting Service Corporation

Survey

A collection of statistical information undertaken by the Australian Bureau of Statistics consistent with the powers prescribed in section 9 of the Census and Statistics Act

Telecommunications Act 

Telecommunications Act 1997

 

PART 1 - PRELIMINARY

 

Clause 1 - Short title

2                     This clause specifies the short title of the Bill, when enacted, as the Marriage Law Survey (Additional Safeguards) Act 2017 (the Act).

Clause 2 - Commencement

3                      This clause sets out the commencement provisions for the Act, in accordance with the table in subclause 2(1) (the commencement table). 

4                      Item 1 of the commencement table provides that the whole Act commences the day after the Act receives the Royal Assent.

5                      A note is included under the commencement table to clarify that it relates only to the provisions of the Act as originally enacted, and will not be amended to deal with later amendments of the Act.

6                      Subclause 2(2) provides that any information in column 3 of the commencement table is not part of the Act.  Information may be inserted in column 3, or information in it may be edited, in any published version of the Act.

Clause 3 - Simplified outline of this Act

7                      Clause 3 provides a high-level overview of the Act.  Simplified outlines are included to assist readers to understand the Act. The outline is not intended to be comprehensive. Readers should rely on the substantive provisions.

Clause 4 - Objects of this Act

8                      Clause 4 provides that the objects of the Act are to promote the following :

·          the integrity of the responses provided to the Statistician, for the purposes of the Census Direction, relating to whether the law should be changed to allow same-sex couples to marry (paragraph (a));

·          proper and respectful public comments on marriage law survey matter by ensuring that those making public comments are accountable for them (paragraph (b));

·          the ability of persons to hold and express views in relation to the marriage law survey question without vilification, in order to ensure that the integrity of the responses provided to, and of the results of the process conducted by, the Statistician for the purposes of the Census Direction is not undermined or impaired by the adverse effects of allowing such vilification (paragraph (c)); and

·          reasonable opportunities for the broadcasting of views about whether the law should be changed to allow same-sex couples to marry (paragraph (d)).  This object (and the related proposed obligation under clause 11) reflects the important role national, commercial, community and other broadcasters have in providing a platform to inform and shape individual and community views on matters of public importance. 

9                      The note at the end of this provision makes it clear that there are various other legislative safeguards that ensure the integrity of responses provided to the Statistician in relation to the marriage law survey process.  These are included in the Public Service Act 1999 , the Census and Statistics Act, the ABS Act and the OECD Best Practice obligations. 

Clause 5 - Definitions

10                  Clause 5 defines the terms used in the Act.  Certain definitions in the Act mirror terms and definitions used in other legislation, including the ABC Act, the Broadcasting Services Act, the Census and Statistics Act, the Electoral Act, the Spam Act 2003 , the Telecommunications Act, the Regulatory PowersAct and the SBS Act.  Some definitions also mirror definitions in the Electoral and Other Legislation Amendment Bill 2017 , which was passed by the Parliament on 11 September 2017.

Authorises

11                  The term ‘authorises’ is relevant to clause 6 of the Bill.  This term applies where a person ‘authorises’ the communication of marriage law survey matter only if the person approves the content of the matter before it is communicated or, if the content is not approved before the matter is communicated, the person communicates the matter. This provision is intended to ensure that the person who is considered to have authorised the communication of marriage law survey matter is the person who is responsible for the communication rather than other persons involved in the communication (who may not necessarily be responsible).  Responsibility is demonstrated by approving the content of matter before it is communicated, or having sufficient authority to communicate matter without content being approved by someone else. 

12                  Two specific examples are provided under the definition of “authorises”.  In the case of a call centre, the person who was originally responsible for approving the content of the phone calls from the call centre is the person who authorises the communication and not the call centre or its staff.  In the case of an email, whose content has not previously been approved, the person who sends the email authorises the communication and not the internet service provider.

13                   The following additional examples illustrate other instances of a person who ‘authorises’ matters under this definition:

 

Example :

Brenda is a volunteer for an advocacy group called Citizens United. Brenda drafts a speech for Alex, a spokesperson for Citizens United.  Alex reads over the speech and requests some edits before approving it.  In this example, Alex has ‘authorised’ the speech.  Even if Alex hadn’t read over the speech and approved it prior to delivery, Alex has ultimate control over what he says or will not say and by reading the speech, Alex is approving it in the form he delivers.

 

Example :

A printer is contracted to print a document supplied by Brenda for Citizens United.  Brenda developed the content and provided it to the printer without consulting Citizens United or clearing the material through Alex.  The printer has not authorised the communication as the printer did not make the decision to communicate the content.  Brenda has authorised the communication. 

 

Example :

Alex sees an online post from Ella, a local business leader who has publically disagreed with the views of Citizens United. Alex reposts Ella’s post, with the comment ‘Shame!’ In this example, Ella authorised the original post and Alex authorised the repost.  The communication Alex is authorising includes the original post and his comment.  The provider of the service used to post both messages does not authorise either post, as the service provider did not make the decision to communicate the content.

 

Example :

Citizens United decides to hire a call centre to ring people in the local community to convince them to support Citizens United’s views in relation to marriage law survey matters.  The call centre asks Alex to provide a script to cover hypothetical scenarios.  Alex emails the script to the call centre and asks them to proceed with calling individuals in the area.

 

Alex has authorised the communication as he approved the content (the script) of what was communicated by the call centre.  The call centre and the provider of the telephone service used by the call centre do not authorise the matter communicated as the call centre and the telephone service provider did not make the decision to communicate the content.

Other key concepts in the Bill

14                  ‘Limitation period’ is designed to capture the period from the date the Bill, once enacted, comes into effect (i.e. the day after the Act receives the Royal Assent) to the date the information is published in accordance with the Census Direction, or 15 November 2017, whichever date is earlier. This term is used in Part 2 in relation to the authorisation provisions and in Part 3, in relation to the obligations on broadcasters.

15                  ‘Marriage law survey matter’ is used in provisions relating to authorisations and the obligations on broadcasters.  The term is defined broadly to capture various types of communications, including:

·          matter commenting on same-sex marriage, the marriage law survey process or the marriage law survey question (other than matter printed or published by the Statistician) (paragraph (a));

·          matter stating or indicating the marriage law survey question (other than matter printed or published by the Statistician) (paragraph (b)); and

·          matter referring to a meeting held or to be held in connection with same-sex marriage, the marriage law survey process or the marriage law survey question (paragraph (c)).

16                  ‘Marriage law survey process’ refers to the process conducted by the Statistician (a term defined by reference to the ABS Act) for the purposes of the Census Direction, and ‘marriage law survey question’ means the questions asked by the Statistician as part of the survey.

17                  ‘Marriage law survey response’ means the response provided by an enrolled person to the Statistician for the purposes of the marriage law survey process.  That is, a completed survey response. This term is used in the offence provisions in Part 4 of the Act and provides protections for the handling of the survey responses.

 

PART 2 - AUTHORISATION OF MARRIAGE LAW SURVEY MATTER

Division 1 - Authorisation of marriage law survey matter

Subdivision A - Authorisation of marriage law survey matter

Clause 6 - Authorisation of marriage law survey matter

18                  Clause 6 provides for an authorisation to be included on a broad range of communications of marriage law survey matter, subject to certain exceptions set out in subclauses 6(3) and (4).  See above for a detailed discussion of the term ‘authorises’.  The authorisation requirements for the marriage law survey matter apply to ‘notifying entities’.

Authorisations and notifying entities

19                  In particular, subclause 6(1) provides for the types of communications covered by the authorisation requirement, which is intended to cover all publicly broadcasted media.  This includes television, radio, digital television and digital radio stations, printed material, voice calls (including robocalls) and text messaging (for example, bulk text messaging).  Note that this provision has extended geographical application (see commentary on clause 20 below).

20                  Subparagraphs 6(1)(a)(iii) and (b)(ii) and paragraph 6(1)(c) define the term ‘notifying entity’ for the purposes of this provision.  This term means the person who approved the content of the advertisement or the printed matter.  Note that subclause 6(2) includes further clarification around the term ‘notifying entity’ (see below).

21                  In general terms, subparagraph 6(1)(a) covers marriage law survey matter in the form of advertisements. Subparagraph 6(1)(b) covers a broad range of marriage law survey matter in the form of promotional items, such as leaflets, flyer, posters and fridge magnets.

22                  Subparagraph 6(1)(c) covers a third alternative matter type, namely a matter that is communicated by, or on behalf of, a person (the notifying entity), that is intended to affect whether another person provides a marriage law survey response to the Statistician, or the content of such a response.

23                  The term ‘communicate’, as used in this provision, is defined in clause 5 to exclude two types of entities who merely carry or broadcast the communication: carriage service providers (a term defined in clause 5 of the Bill, by reference to the Telecommunications Act); and broadcasters.  This exclusion is for avoidance of any doubt, and reflects that in some capacity, broadcasters and carriage service providers are the medium through which another entity’s matter is communicated.  To the extent that broadcasters and carriage service providers merely represent the conduit by which the matter is communicated, and are not the author of the message, the authorisation obligations under clause 6 will not apply.

24                  Note, marriage law survey matter covered by paragraphs 6(1)(b) and (c) are subject to the exceptions in subclauses 6(3) and 6(4) - see below.

25                  Subclause 6(2) provides that if a communication falls within the parameters of subclause 6(1) of the Act, but the communication was made by an individual on behalf of another person or entity, the second person/entity is the ‘notifying entity’ for the purposes of subclause 6(1).  For example, Adam, an employee of Company A, is directed by Company A to send a bulk text message covering marriage law survey matter on behalf of Company A. The notifying entity in relation to the communication will be Company A.  

Exceptions

26                  Subclauses 6(3) and (4) provide exceptions to subclause 6(1).  In particular, communications that forms part of clothing or any other item that is intended to be worn on the body and items where the size or nature makes it impracticable to include a notification are not considered to be communications for the purposes of subclause 6(1) (see subclause 6(3)).  Communication using these items would generally provide the opportunity to engage with the wearer and to seek any required clarification on who authorised the communication.

27                  Subclause 6(4) specifies further exceptions to the requirement for an authorisation to be made under paragraph 6(1)(b) or (c), in respect of matter communicated by, or on behalf of, a notifying entity provided that it is not an advertisement covered by paragraph 6(1)(a).  These exceptions are matter that form part of:

·          the reporting of news, the presenting of current affairs or any editorial content in the news media (paragraph 6(4)(a)).  This exception is intended to ensure that there is a free media able to comment on matters related to the survey without being subject to authorisation requirements;

·          a communication engaged in solely for genuine satirical, academic or artistic purposes (paragraph 6(4)(b)).  For these types of communication, there can be no intent to affect a survey response.  In the event that there are multiple purposes which incorporate such an intent, then the communication would not fall within this exception;

·          an opinion poll or research relating to the intentions of survey participants (paragraph 6(4)(c)).  As this type of communication is around collecting information (such as views on same-sex marriage or the survey process) rather than communicating marriage law survey matters, this exception is intended to allow information provided in conducting these activities to not be authorised.  The nature of opinion polling and research means that requiring authorisation, rather than preserving anonymity, could influence the information that survey participants are willing to provide and therefore the results of that poll or research;

·          a communication for personal purposes (paragraph 6(4)(d)).  This exception is intended to ensure that personal communications which are clearly not intended to be communicated more broadly do not require an authorisation. For example, a supporter of a politically active group calls a family member of his/her family or a friend and discusses marriage law survey matters with no intention that their views will be distributed more widely in a public setting;

·          an internal communication of a notifying entity (paragraph 6(4)(e)).  This exception is intended to ensure that internal communications of notifying entities do not require authorisation.  Examples include internal communications which are clearly not intended to be communicated publicly, such as internal consultation on a communications strategy;

·          a communication at a meeting of two or more persons if the identity of the person (the ‘speaker’) communicating at the meeting, and any entity on whose behalf the speaker is communicating, can reasonably be identified by the person or persons to whom the speaker is speaking (paragraph 6(4)(f)).  ‘Meeting’ is defined in clause 5 and is intended to have a broad meaning and capture any meeting between two or more persons whether or not the meeting was organised before the meeting began; and any meeting in which the members participate by telephone, internet or any other means of communication;

·          a live communication of a meeting covered by paragraph 6(4)(f), but not any later communication of that meeting (paragraph 6(4)(g)).  This removes the authorisation requirements from live communications, such as live broadcasting, without exempting later communication such as delayed broadcasting; and

·          a communication solely for the purpose of announcing a meeting (paragraph 6(4)(h)).  This removes the requirement for including a notification on material which solely is used for announcing a meeting.  The purpose of the communication must be for the sole purpose of the announcement. Therefore, where there are multiple purposes for the communication, then the communication does not fall within this exception.

Notifying particulars

28                  Paragraph 6(5)(a) specifies the particulars that the notifying entity must ensure are notified at the end of a communication (unless the communication is a text message or bulk voice call - see subparagraphs 6(5)(c) and (d)). 

29                  Paragraph 6(5)(b) specifies that where the communication is in writing, the notification must be in a font size that can be easily read by a person with normal vision, without a visual aid.  This will ensure that participants in the marriage law survey are able to easily read and identify the source of the communication.

30                  For text messages, given the particulars are too long to be included in the text message itself, the notification must be included in a URL included in the text message (subparagraph 6(5)(c)).  For voice calls (including bulk calls), the authorisation must be included at the start of the call (paragraph 6(5)(d)). 

31                  These requirements that must be notified are set out in a table in subclause 6(5), and differ according to whether the communication is made by an individual (defined in the Acts Interpretation Act 1901 to be a ‘natural person’) or an entity that is not an individual.

32                  The requirement for the notifying entity to ‘ensure’ particulars are notified, provides for the possibility that they do not notify those particulars themselves in order to meet their obligation.  The term ‘address’, as used in subclause 6(5), is defined in clause 5. 

Example :

Alex is the spokesperson for an advocacy group, ‘Citizens United’ based in Western Australia and is being interviewed on a local radio station in relation to his group’s views on the survey.  The radio presenter introduces Alex at the start of the interview by including Alex’s full name, identifying Alex as a spokesperson for Citizens United, and that Citizens United is based in Perth. 

Alex has met his obligations to notify particulars under subsection 6(5), as the radio interviewer has notified all particulars required of Citizens United communications authorised by Alex. That is, Alex does not need to repeat the particulars as he has ensured that the particulars have been notified.

33                  The particulars contribute to the objects of clause 6 in different ways. The inclusion of the name of the entity supports transparency around who is providing the communication.  The requirement to notify the relevant town or city provides further information to survey participants with respect to local issues.  That is, a survey participant may give more weight to a communication about local perspectives where the communication is made by a person or organisation in their own city or town, particularly where local perspectives differ from those of other areas. For example, a communication could include stories and viewpoints of public figures in the local area.

34                  The requirement to notify the name of the natural person responsible for giving effect to the authorisation is intended to: increase transparency and provide certainty for survey participants as to the veracity of the particulars; promote accountability within notifying entities; and assist with compliance, by providing a direct point of contact in relation to the notifying entities. This requirement is also intended to support the ability of people to take civil action if they consider the communication to be defamatory or otherwise unlawful, particularly where a notifying entity is not a natural person.

35                  If the notifying entity is a natural person, for example, an individual political donor, item 4 of the table in subclause 6(5) requires the particulars around the name of the person and the town or city in which the person lives.

36                  Notifying entities that are natural people communicating to small audiences or to people they know are expected to be frequently covered by the exemptions in subclause 6(4), or able to comply with the requirements in item 4 relatively easily. Where an exception in 6(4) does not apply, it is appropriate for survey participants to understand the source of the communication via the requirement to notify the particulars in item 4 of the table in subclause 6(5).  

Example :

An email from Citizens United on marriage law survey matters, sent to survey participants, could include a signature block containing the required notifying particulars.  Note that, internal emails within Citizens United may be covered by the exception in paragraph 6(4)(e).   

Civil penalty provision

37                  Subclause 6(5) is a civil penalty provision which is enforceable under the Regulatory Powers Act.  A person who fails to notify the particulars, or notifies incorrect particulars, contravenes this civil penalty provision.  The relevant civil penalty is 120 penalty units.  The amount of the relevant penalty is calculated in accordance with section 4AA of the Crimes Act 1914 , and is commensurate with similar Commonwealth regulatory regimes.

38                   Where a notifying entity that is not a legal entity (for example, a community citizens’ group), contravenes subclause 6(5), subclause 6(6) provides that for the purposes of the Act and the Regulatory Powers Act, each member, agent or officer (however described) of the entity who contributed to the contravention through action or inaction in their role would be individually responsible for not meeting the authorisation obligation under subsection 6(5). 

 

Example:

 

An advert by Company B, an incorporated legal entity, does not include the correct particulars required by subclause 6(5).

 

Subsection 6(6) does not apply and Company B is subject to the civil penalty associated with bodies corporate under subsection 82(5) of the Regulatory Powers Act. Under subsection 82(5) of the Regulatory Powers Act, bodies corporate are subject to a ‘corporate multiplier’, which is five times the civil penalty amount specified for individuals. Company B is subject to a civil penalty of 600 penalty units (which currently equates to $126,000).

Parliamentary broadcasts

39                  Subclause 6(7) makes it clear that clause 6 does not apply to the broadcasting or re-broadcasting of any proceedings of either House of the Parliament or of a joint sitting under the Parliamentary Proceedings Broadcasting Act 1946

Subdivision B - Information-gathering powers

Clause 7 - Electoral Commissioner may obtain information and documents from persons

40                  Clause 7 provides information-gathering powers to the Electoral Commissioner.  This clause:

·          provides that clause 7 applies to a person if the Electoral Commissioner has reason to believe that they have information or a document that is relevant to assessing compliance with clause 6, in relation to the authorisation of marriage law survey matter (subclause 7(1));

·          allows the Electoral Commissioner to require a person, by written notice, to give information or produce documents or make copies of any such documents and to produce to the Electoral Commissioner, within the period and in the manner and form specified in the notice, any such information, documents or copies (subclause 7(2));

·          requires the Electoral Commissioner to have regard to the likely costs in complying with any requirement before giving a notice (subsection 7(3)), although regard may be had to other matters (subclause 7(4));

·          requires a notice to specify the effect of sections 137.1 and 137.2 of the Criminal Code (subclause 7(5)).  Sections 137.1 and 137.2 of the Criminal Code provide offences for production of false or misleading documents, and the provision of false or misleading information; and

·          entitles a person to be paid reasonable compensation by the Commonwealth for complying with a requirement to make copies of any documents required by a notice under paragraph 7(2)(c) (subclause 7(6)).



Clause 8 - Copies of documents

41                  Clause 8 provides powers for the Electoral Commissioner to inspect or copy a document, and make and retain copies of, documents produced under clause 7.  The Electoral Commissioner may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 7(2)(c).

Clause 9 - Retention of documents

42                  Clause 9 provides for the retention of documents.  This section:

·          allows the Electoral Commissioner to take possession of a document produced under clause 7 and retain it for as long as necessary (subsection 9(1));

·          entitles a person otherwise entitled to possession of the document to be supplied a certified copy by the Electoral Commissioner as soon as practicable (subsection 9(2)); 

·          allows the certified copy to  be received in all courts and tribunals as evidence as if it were the original (subsection 9(3)); and

·          requires, until such time as a certified copy is supplied, the Electoral Commissioner to permit a person otherwise entitled to possession of a document, or a person authorised by that person, to inspect and make copies of the document, at such times and places as he or she thinks appropriate (subsection 9(4)).

Division 2 - Authorisation of marriage law survey matter during broadcasts

Clause 10 - Authorisation of marriage law survey matter and records of matter broadcast

43                  Clause 10 applies certain provisions in the Broadcasting Services Act, the ABC Act and the SBS Act regarding ‘political matter’ and ‘political subject’ to marriage law survey matter for the purpose of the survey during the limitation period (a defined term in clause 5). 

44                  The obligations that fall to broadcasters under those Acts (which include obligations to publish certain particulars) continue to apply in an unaffected manner in relation to the marriage law survey matter.  This includes obligations to broadcast certain particulars.  It also ensures existing compliance, accountability and transparency requirements under the SBS Act and ABC Act will apply to these broadcasters’ engagement with marriage law survey matter.

Authorisation of certain marriage law survey matter

45                  Paragraph 10(1)(a) would apply subclause 10(1) to the reference to political matter in clauses 1 and 4 of Schedule 2, and subclause 24(4) of Schedule 6, to the Broadcasting Services Act.

46                  Clause 1 of Schedule 2 to the Broadcasting Services Act defines ‘political matter’, for the purpose of that Schedule, as meaning any political matter, including the policy launch of a political party.

47                  Clause 4 of Schedule 2 to the Broadcasting Services Act places obligations on broadcasters who broadcast political matter at the request of another person. Subclause 4(2) of Schedule 2 to the Broadcasting Services Act requires those broadcasters to, immediately afterwards, cause the required particulars in relation to the political matter to be announced in a form approved in writing by the ACMA. The required particulars are defined in clause 1 of Schedule 2 to the Broadcasting Services Act, and are categorised depending upon whether the broadcasting was authorised by a political party, by a person other than a political party or by the name of every speaker who, either in person or by means of a sound recording device, delivers an address or makes a statement that forms part of that matter.

48                  Subclause 24(4) of Schedule 6 to the Broadcasting Services Act sets out the broadcast authorisation condition to which datacasting licensees are subject. The effect of applying subclause 10(1) to these provisions would be to apply the same requirements to the broadcast of marriage law survey matter for the purpose of the survey during the limitation period.

49                  Paragraph 10(1)(b) would apply subclause 10(1) to the reference to political matter in section 79A of the ABC Act. Section 79A of the ABC Act relates to the broadcasting of political or controversial matter. Subsection 79A(1) of the ABC Act maintains the ABC’s discretion, subject to the ABC Act, to determine to what extent and in what manner political matter or controversial matter will be broadcast by the ABC. Subsections 79A(2) and (3) set out specific requirements for the ABC to announce or transmit required particulars in relation to political matter it broadcasts at the request of another person, to keep details of the person or company that requested it to broadcast political matter, and to give those details to the ACMA upon request. The effect of applying subclause 10(1) to section 79A of the ABC Act would be to apply the same requirements to the broadcast of marriage law survey matter by the ABC during the limitation period.

50                  Paragraph 10(1)(c) would apply subclause 10(1) to the reference to political matter in section 70A of the SBS Act. Section 70A of the SBS Act relates to the broadcasting of political or controversial matter. Subsection 70A(1) of the SBS Act maintains the SBS’s discretion, subject to the SBS Act, to determine to what extent and in what manner political matter or controversial matter will be broadcast by the SBS. Subsections 70A(2) and (3) set out specific requirements for the SBS to announce or transmit required particulars in relation to political matter it broadcasts at the request of another person, to keep details of the person or company that requested it to broadcast political matter, and to give those details to the ACMA upon request. The effect of applying subclause 10(1) to section 70A of the SBS Act would be to apply the same requirements to the broadcast of marriage law survey matter by the SBS during the limitation period.

51                  The effect of subclause 10(1) and subclause 10(3) is that the authorisations of marriage law survey matter broadcast for the purpose of the survey will be a broadcasting licence condition, and a datacasting licence condition, to the extent that the matter is broadcast during the limitation period.

Keeping and retaining records relating to the marriage law survey

52                  Similar to subclause 10(1), subclause 10(2) sets out provisions from the Broadcasting Services Act, the ABC Act and the SBS Act that use the term political subject, and provide for those references to include a reference to marriage law survey matter.

53                  Paragraph 10(2)(a) would apply subclause 10(2) to the reference to political subject in clause 5 of Schedule 2 to the Broadcasting Services Act. Clause 5 specifies when a broadcaster who broadcasts matter relating to a political subject or current affairs must cause a record of the political subject to be made in a form approved in writing by the ACMA. The effect of applying subclause 10(2) to clause 5 of Schedule 2 to the Broadcasting Services Act would be to apply the same requirement to the broadcast of marriage law survey matter.

54                  Paragraph 10(2)(b) would apply subclause 10(2) to the reference to political subject in section 79B of the ABC Act. Section 79B of the ABC Act provides that, if the ABC broadcasts matter relating to a political subject or current affairs, the ABC must cause a record of the matter to be made. Subsections 79B(2) to 79B(6) of the ABC Act state the time period within which the ABC is required to retain the record, including if the record is admissible as evidence in a court case. The effect of applying subclause 10(2) to section 79B of the ABC Act would be to apply the same requirement if the ABC broadcasts marriage law survey matter during the limitation period. 

55                  Paragraph 10(2)(c) would apply subclause 10(2) to the reference to political subject in section 70B of the SBS Act. Section 70B of the SBS Act provides that, if the SBS broadcasts matter relating to a political subject or current affairs, the SBS must cause a record of the matter to be made. Subsections 70B(2) to 79B(6) of the SBS Act state the time period within which the SBS is required to retain the record, including where the record is admissible as evidence in a court case. The effect of applying subclause 10(2) to section 70B of the SBS Act would be to apply the same requirement if the SBS broadcasts marriage law survey matter during the limitation period. 

56                  Subclause 10(3) provides that the obligations in subclauses 4(2) and (3) and clause 5 of Schedule 2 to the Broadcasting Services Act, subsection 79A(2) and (3) of the ABC Act and subsections 70A(2) and (3) and section 70B of the SBS Act, would apply in relation to marriage law survey matter only if the matter is broadcast during the limitation period. The obligations in these clauses are outlined above. The limitation period is defined in clause 5 of the Bill. The effect of this subclause would be to limit the time period in which the obligations on broadcasters would apply in relation to the broadcast of marriage law survey matter

57                  Subclause 10(4) provides that subsection 10(3) does not affect the meaning of the terms ‘political matter’ or ‘controversial matter’ used in section 79A of the ABC Act or section 70A of the SBS Act. 

No requirement to lodge annual return

58                  Subclause 10(5) refers to the annual returns relating to political expenditure, for the purpose of broadcasting marriage law survey matter. This subclause provides that a person would not be required to provide a return for a financial year under subparagraph 314AEB of the Electoral Act merely because that person incurred expenditure for the purposes of broadcasting marriage law survey matter in relation to which particulars were required to be announced under subclause 4(2) of Schedule 2 to the Broadcasting Services Act (as it would apply to the marriage law survey matter by operation of subclause 10(1) of the Bill).



PART 3 - OBLIGATIONS ON BROADCASTERS

Clause 11 - Obligations on broadcasters to give reasonable opportunities to broadcast opposing views

Requirement to give a reasonable opportunity to broadcast opposing views

59                  Subclause 11(1) provides that, subject to subclause (2), clause 3 of Schedule 2 to the Broadcasting Services Act (which imposes a licence condition relating to the broadcast of election matter during an election period) applies to marriage law survey matter. It requires that where a broadcaster, during the limitation period, broadcasts marriage law survey matter expressing a view in relation to the marriage law survey question, a reasonable opportunity must be given to a representative of an organisation that holds an opposite view, to broadcast marriage law survey matter during that period.  ‘Marriage law survey matter’ is defined in clause 5 of the Bill.

60                  In practical terms, the effect of subclause 11(1) would be to require broadcasters to give representatives from both sides of the same-sex marriage debate a reasonable opportunity to broadcast material in the lead up to the final date for responses to be provided in relation to the survey. This is consistent with the requirement imposed on broadcasters for the broadcast of political or controversial matter during elections that exists under the Broadcasting Services Act.

Exception to requirements

61                  Subclause 11(2) sets out an exception to the requirement in subclause 11(1).  An exception is proposed to the reasonable opportunity obligation in recognition of the existence of:

·          community radio broadcasters operating under licences focussed on broadcasting to religious or gay and lesbian groups; or

·          subscription broadcasting and narrowcasting class licence holders whose broadcasting is focussed to religious community interests or gay or community interests that includes gay and lesbian community interests.

62                  The exception is narrowly cast to only cover community radio broadcasters that hold long-term (5 years) or short-term (12 months) licences under Part 6 or 6A of the Broadcasting Services Act and to class licence holders who hold those licences under Part 8 of the Broadcasting Services Act and where in, in obtaining the licence, the broadcaster has identified a specific community of interest or special interest group.

63                  The exception is provided in recognition that a small proportion of these broadcasters were established to and deliver services that target audiences who are expected to feel a particularly close personal connection with the marriage law survey matter.  The exception does not prevent those broadcasters from broadcasting different views on the marriage law survey matter to their audiences.  It provides greater discretion to these licence holders to determine how their broadcast service can contribute to a proper and respectful debate during the limitation period, taking into account their understanding of the views of their audiences.



References to clauses 3 and 3A of Schedule 2

64                  Subclause 11(3) provides that paragraphs 7(1)(j), 8(1)(i), 9(1)(i), 10(1)(i) and 11(1)(d) of Schedule 2, and paragraph 24(1)(a) and subclause 24(4) of Schedule 6, to the Broadcasting Services Act would apply to marriage law survey matter as if references in those paragraphs to clause 3 of Schedule 2 to the Broadcasting Services Act included references to those clauses as they apply to marriage law survey matter (i.e. as amended by subclauses 11(1) and (2) of the Bill).

65                  Paragraphs 7(1)(j), 8(1)(i), 9(1)(i), 10(1)(i) and 11(1)(d) of Schedule 2 to the Broadcasting Services Act require the holders of commercial television, commercial radio, community, subscription television, and class licences (a term defined in the Broadcasting Services Act), respectively, to comply with the requirements of, inter alia, clause 3 of Schedule 2 to the Broadcasting Services Act.

66                  Clause 24 of Schedule 6 to the Broadcasting Services Act sets out general conditions on datacasting licences. Paragraph 24(a) of Schedule 6 to the Broadcasting Services Act requires the holder of a datacasting licence to comply with, inter alia, clause 3 of Schedule 2 to the Broadcasting Services Act. 

67                  Subclause 24(4) of Schedule 6 to the Broadcasting Services Act provides that those clauses apply to datacasting services in the same way as they apply to broadcasting services.

68                  The combined effect of subclauses 11(1) and 11(2) would be to require all broadcasting and datacasting licence holders to comply with clause 3 of Schedule 2 to the Broadcasting Services Act, as amended by subclauses 11(1) and (2) of the Bill for the purpose of marriage law survey matter.

69                  This means that licence holders would be required to comply with special conditions relating to broadcasting marriage law survey matter during the limitation period, including the requirement to give a reasonable opportunity to broadcast opposing views. This provision is technically required to give full effect to the modifications made by subclauses 11(1) and (2) of the Bill.

70                  Subclause 11(4) requires the ABC to provide a reasonable opportunity to broadcast opposing views.   The practical result of this new obligation under subclause 11(4) is to elevate to legislative status the existing requirement in ABC’s Editorial Guides, which establish that “opportunities over time for principal relevant perspectives on matters of contention to be expressed” is a hallmark of impartiality. Impartiality is one of the ABC’s existing legislative requirements.

71                  Subclause 11(5) largely mirrors the substance of subclause 11(4), however applies in respect of SBS.  Subclause 11(6) provides that new subclause 11(5) does not require the SBS to broadcast any matter free of charge. This complements and builds upon the existing duty on the Board (as set out in section 10 of the SBS Act), to make sure that the gathering and presentation of news and information is accurate and is balanced over time and across the schedule of programs broadcast by SBS.

Clause 12 - Allowable broadcasting of non-Program matter

72                  Commercial television broadcasters voluntarily comply with the Commercial Television Industry Code of Practice (the Code). The Code sets out various obligations, including time limit rules for advertising on television (non-Program matters) at various times of the day during election periods, which are slightly more generous than the limits applying during non-election periods.  

73                  To ensure commercial broadcasters can practically meet the ‘reasonable opportunity’ requirement under subclause 11(1), clause 12 will apply those same time limit restrictions during the limitation period. 

74                  Different time limits will apply depending on the whether it is the television broadcaster’s primary broadcasting service or multi-channel. This is consistent with the current Code. 

75                   Because the limits are averaged, in relations to a commercial television broadcasting licensee’s primary commercial television broadcasting service, more can be scheduled in any particular hour subject to the hourly maximums (subclauses 12(1) to 12(2)).

76                  For marriage law survey matter, on their main channels, commercial television broadcasters  may schedule an average of:

·          13 minutes per hour of non-Program matter (including other than marriage law survey matter) and an extra one minute for marriage law-survey material, between 6pm and midnight; and

·          16 minutes per hour of non-Program matter (including other than marriage law survey matter) and an extra one minute for marriage law-survey material, at other times.

77                  For marriage law survey matter, on their multi-channels, commercial television broadcasters may schedule up to:

·          15 minutes per hour of non-Program matter (including other than marriage law survey matter) and an extra one minute for marriage law-survey material, between 6pm and midnight; and

·          16 minutes per hour of non-Program matter (including other than marriage law survey matter) at all other times (subclause 12(3)).

 

PART 4 - OFFENCES AND CIVIL PENALTY PROVISIONS

Clause 13 - Bribery

78                  These provisions are directed at ensuring that responses to the survey, and decisions whether to respond, are not unduly influenced by bribery.

79                  Subclause 13(1) applies to conduct after the commencement of clause 13 and provides for an offence with a maximum penalty of 60 penalty units in relation to receiving bribes.  A person commits an offence under this provision if they ask for, receive or obtain, or offer or agree to ask for, or receive or obtain, any property or benefit for the person or any other person, where this is done on the understanding that this will influence or affect their decision whether to provide a marriage law survey response to the Statistician, or the content of such a response. 

80                  Subclause 13(2) applies to conduct after the commencement of clause 13 and provides for an offence with a maximum penalty of 60 penalty units in relation to giving bribes.  A person commits an offence under this provision if they give or confer, or promise or offer to give or confer, any property or benefit to another person with the intent of influencing or affecting their decision whether to provide a marriage law survey response to the Statistician, or the content of such a response. 

81                  Subclause 13(3) provides a defence for the offences in subclauses 13(1) and 13(2) where property or a benefit is a declaration of public policy or a promise of public action.  In accordance with subsection 13.3(3) of the Criminal Code, a defendant bears the evidential burden in relation to this defence.  This provides a similar exception to that in operation for the electoral bribery offence in section 326 of the Electoral Act.

Clause 14 - Threats

82                  This provision is directed at ensuring that responses to the survey, and decisions whether to respond, are not unduly influenced by threats.  Clause 14 applies to conduct after the commencement of clause 14 and provides for an offence with a maximum penalty of 60 penalty units in relation to threats.  A person commits an offence under this provision if they make a threat to an enrolled person to cause detriment, and they intend to influence or affect the enrolled person’s decision whether to provide a marriage law survey response to the Statistician, or the content of such a response. 

Clause 15 - Vilification etc. as a result of expressing views etc. in relation to the marriage law survey question

83                  This provision is directed at addressing conduct that vilifies, intimidates or threatens to cause harm to another person or persons on the basis of their views in relation to the marriage law survey, or their religious conviction, sexual orientation, gender identity or intersex status.

84                  Clause 15 applies to conduct after the commencement of clause 15 and provides a penalty of up to 60 penalty units.  See clause 19 (below) for commentary on the application of the Regulatory Powers Act to civil penalties in this context.  Note that clause 20 (extended geographical application) applies to clause 15.

85                  A person (the first person) contravenes subclause 15(1) if they engage in conduct, where that conduct resulted in or could reasonably have expected to result in the vilification, intimidation or threat to cause harm to another person or group of persons on certain grounds.  The grounds include any of the following:

·          that the other person or group expresses or holds a view in relation to the marriage law survey question (paragraph (a));

·          that the first person believes that the other person or persons hold a view in relation to the marriage law survey question (paragraph (b)); or

·          the religious conviction, sexual orientation, gender identity, or intersex status of the other person or persons (paragraph (c)). 

86                  A note is included to refer the reader back to the definition of ‘ vilify, intimidate or threaten to cause harm ’ in clause 5.  The definition confirms that where a broadcaster or carriage service provider is no more than the conduit for the conduct that is captured by subclause 15(1), the broadcaster or carriage service provider does not contravene this clause.

87                  Subclause 15(2) provides that the expression of a person’s own view about the marriage law survey question does not result in them engaging in conduct referred to in subclause 15(1). That is, a mere expression of support or opposition for the survey question by itself cannot offend this section, without any additional language that adds an aggravating factor (for instance content with a vilifying character).

88                  Subclause 15(3) provides exceptions to the provision.  The exceptions apply to conduct, done reasonably and in good faith to, amongst other things, report the news and communicate for satirical, academic or artistic purposes. There is also an exception for any publication communicated, distributed or disseminated reasonably and in good faith that is subject to a defence of absolute privilege in proceedings for defamation.

89                  Subclause 15(4) provides that it is not necessary to prove that a specific person had expressed a view or holds a view in relation to the marriage law survey question, or that the first person believes that a specific person holds a view, in order for there to be a contravention. This clarifies that the state of mind of a party who contravenes this section can be reasonably inferred from comments made or associated circumstances, without an unreasonable requirement of proof.   

Clause 16 - Interference with marriage law survey response etc.

90                  This provision is directed at addressing conduct that hinders or interferes with any person in providing a marriage law survey response or discriminates against another person because the other person made a donation to a notifying entity.  Clause 16 provides civil penalties with a maximum penalty of 60 penalty units for contravention.  See clause 19 (below) for commentary on the application of the Regulatory Powers Act to civil penalties in this context.  Note that clause 20 (extended geographical application) applies to clause 16.

91                  A person contravenes subclause 16(1) if they engage in conduct that commences, hinders or interferes with any other person in providing a marriage law survey response.  Clause 16(1) applies to conduct after the commencement of clause 16.  

92                  A person contravenes subclause 16(2) if they discriminate against another person due to the other persons making a donation to a notifying entity.  Discrimination includes denying the other person access to membership of any trade union, club or other body; not allowing the other person to work or to continue to work; subjecting the other person to any form of intimidation or coercion or other detriment that causes, was likely to cause, or could be reasonably expected to cause, serious harm to the other person.   Clause 16(2) applies to conduct after the commencement of clause 16.   Note that the term ‘discrimination’ is not defined in the Bill and is taken to apply broadly.

93                  Article 25(a) of the International Covenant on Civil and Political Rights (ICCPR) provides that “every citizen shall have the right and the opportunity…without unreasonable restrictions…to take part in the conduct of public affairs, directly or through freely chosen representatives”. Additionally article 26 of the ICCPR provides that all persons are entitled to equal and effective protection against discrimination on any ground such as…political or other opinion”. Discrimination is usually considered as an obligation to prevent differential treatment on a prohibited basis. Subclause 16(2) is intended to make unlawful the differential treatment of those who donate to a freely chosen representative, in order for that representative to engage in political activity on behalf of the donor, with regards to the marriage law survey.

94                  These provisions are in addition to protections set out in the Crimes Act 1914 and the Commonwealth discrimination legislation, specifically in relation to marriage law survey response matters. 

Clause 17 - Misleading matter in relation to completing the marriage law survey

95                  A person contravenes subclause 17(1) if they print, publish or distribute, or cause, permit or authorise to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an enrolled person in relation to responding to the marriage law survey.  A person will only contravene the provision if the printing, publication or distribution occurs during the limitation period (defined in clause 5 of the Bill).  Subclause 17(1) applies to conduct after the commencement of clause 17 and is a civil penalty provision with a maximum penalty of 60 penalty units in relation to misleading or deceptive publications. 

96                  The intention of this provision is not to ensure that matter that is printed, published or distributed around the general subject matter of the survey is truthful or correct, but rather to address where misleading or deceptive information is provided about the marriage law survey response.  It is not expected that the Electoral Commissioner or any delegates of the Electoral Commissioner will regulate any political content of advertising.  The Electoral Commissioner’s role will be to ensure that publications do not mislead or deceive enrolled persons about the way in which they respond to the survey, and more specifically, how the survey form is marked.  For example, publications should not advocate a way of responding to the survey that is not provided for on the survey form or instructions.  This includes marking the survey form in such a way that would result in the response not being counted.

97                  Subclause 17(2) provides that the contravention does not apply in two circumstances:

·          if the person did not know, and could not reasonably be expected to have known, that the matter or thing was likely to mislead or deceive an enrolled person; or

·          the person could not reasonably be expected to have confirmed the details of the matter or thing before it was printed, published or distributed. An example of an instance where this exclusion may be applicable is live or near-live broadcasts where the relevant broadcaster has no reasonable opportunity to control the content of the communication ahead of time.  

Clause 18 - Officers not to influence marriage law survey responses

98                  Clause 18 provides that the Statistician or an officer of the ABS commits an offence if they engage in conduct with the intention of influencing the content of a marriage law survey response provided to the Statistician.  The offence is limited to those circumstances where the Statistician or officer is exercising powers or performing duties in relation to the marriage law survey.    Clause 18 applies to conduct after the commencement of clause 18 and is an offence with a maximum penalty of 60 penalty units. 

99                  This provision will assist in ensuring the impartiality of relevant officers.  It supplements other limitations and obligations placed on the Statistician and officers of the ABS under the Public Service Act 1999 , the ABS Act, the Census and Statistics Act and OECD Best Practice.

100              ABS officers can advise persons on what type of marks are legitimate (how to complete their form) as part of the marriage law survey process, but may not influence an individual’s choice between ‘yes’ or ‘no’, consistent with this clause.

 

PART 5 - MISCELLANEOUS

Clause 19 - Application of the Regulatory Powers Act

101              Clause 19 sets out how the Regulatory Powers Act applies to the provisions in the Bill.  Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty.  Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions. 

102              Subclause 19(1) provides that clauses 6 (authorisation of marriage law survey matters) , 15 (vilification) or 16 (interference or discrimination) and 17 (misleading matter) , are enforceable under Parts 4 and 6 of the Regulatory Powers Act. 

103              Subclause 19(2) specifies that, subject to subclause 19(3):

·          the Electoral Commissioner is an authorised applicant.  This allows the Electoral Commissioner to apply to the Federal Court for an order that a person who is alleged to have contravened clauses 6 (authorisation of marriage law survey matters) , 15 (vilification) or 16 (interference or discrimination) or 17 (misleading matter);

·          another person, as authorised by the Attorney-General under subclause 19(4) may be approved to bring an action in relation to a contravention of clauses 6 (authorisation of marriage law survey matters) , 15 (vilification) or 16 (interference or discrimination) and 17 (misleading matter);   

·          the Electoral Commissioner is an authorised person for the purposes of Part 6 of the Regulatory Powers Act.  This allows the Electoral Commissioner to accept an undertaking relating to compliance with clauses 6 (authorisation of marriage law survey matters) , 15 (vilification) or 16 (interference or discrimination) or 17 (misleading matter); and 

·          the Federal Court of Australia is a relevant Court for the purposes of Parts 4 and 6 of the Regulatory Powers Act.

104              Subclause 19(3) specifies that, for clause 15 (vilification), a person must not take any action under or in relation to Part 4 or 6 of the Regulatory Powers Act without the consent of the Attorney-General.

105              Subclause 19(4) provides that the Attorney-General may approve a notifying entity or a member, agent or officer of a notifying entity to apply for a civil penalty order under Part 4 of the Regulatory Powers Act in relation to a contravention of clauses 6 (authorisation of marriage law survey matters) , 15 (vilification) or 16 (interference or discrimination) and

17 (misleading matter) - see subparagraph 19(2)(a)(ii). 

106              Subsection 82(2) of the Regulatory Powers Act provides that the authorised applicant must make the application within 4 years of the alleged contravention.  Subclause 19(5) clarifies that, despite subsection 82(2) of the Regulatory Powers Act, an application may be made under section 82 of that Act within 3 months (and not 4 years) of a person contravening a civil penalty provision of this Act. 

107              Subclause 19(6) provides that the Administrative Decisions (Judicial Review) Act 1977 does not apply in relation to a decision under subclauses 19(3) or 19(4).

Clause 20 - Extended geographical application of sections 6, 15, 16 and 17

108              Clause 20 provides for the extended geographical application of civil penalty provisions included in clause 6 (authorisations), clause 15 (vilification), clause 16 ( interference or discrimination ) and clause 17 (misleading matter). 

109              This provision is intended to improve the ability to enforce alleged contraventions of the civil penalty provision.  The extended geographical application in subclause 20(1) is consistent with that provided for by subsection 15.2(1) of the Criminal Code (extended geographical application - category B), and is considered appropriate for civil penalty provisions of this nature.  The exception provided for by subsection 20(2) is consistent with the defence in subsection 15.2(2) of the Criminal Code.

Clause 21 - Injunctions

110              Clause 21 is similar to the injunctions provisions included at section 383 of the Electoral Act. 

111              Subclause 21(1) inserts a power for the Federal Court to grant an injunction restraining persons from engaging or proposing to engage in conduct that would constitute a breach of the Act.  An applicant referred to in subclause 21(5), is authorised to make an application seeking a restraining injunction.  Note that a person cannot apply for an injunction under subclause 15 or subclause 16 without the consent of the Attorney-General (see subclause 21(11)). 

112              Subclause 21(2) inserts a power for the Federal Court to grant an injunction requiring a person to do an act or thing where they have refused to take some action to overcome a breach of the Act.  An applicant referred to under subclause 21(5) is authorised to make an application seeking a performance injunction.  . 

113              Subclauses 21(3) and (4) specify the circumstances under which an injunction may be granted in relation to clause 6 of the Bill (authorisations), 15 (vilification) and 16 ( interference or discrimination ) without limiting the operation of subclause 21(1) of the Bill.  In particular, under subclause 21(3), the Federal Court, on behalf an applicant referred to under subclause 21(5) , may grant an injunction restraining a carriage service provider (a term defined in clause 5 of the Bill) from supplying a listed carriage service to the relevant person (i.e. the person who is contravening clause 6 or 15 of the Bill).  Under subclause 21(4), in relation to a contravention or proposed contravention of clause 6, 15 or 16 by a relevant person, the Federal Court may, on application of an applicant under subclause 21(5) , grant an injunction restraining a broadcaster from broadcasting the matter.  

114              Subclause 21(5) identifies the applicants that may apply for an injunction under this clause, in particular the Electoral Commissioner, a notifying entity, or a member, agent or officer of a notifying entity

115              Subclause 21(6) allows the Federal Court to grant an interim injunction restraining a carriage service provider from supplying a listed carriage service, or a broadcaster from broadcasting matter, pending the consideration and determination of an application made under this provision. 

116              Subclause 21(7) sets out that the Federal Court may discharge or vary an injunction granted under this section. 

117              Subclauses 21(8) to 21(10) provides that a court is not required to consider past and future conduct in relation to considering an application to grant an injunction under this provision. 

118              Subclause 21(11) provides that, if an applicant referred to in subclause 21(5) makes an application to the Federal Court for an injunction under this provision, the Federal Court may require the applicant or any other person to give undertakings as to damages as a condition of the granting of an interim injunction.  However, this is only if the Federal Court is satisfied that undertakings are appropriate in all the circumstances.   

Clause 22 - Notice to Attorney-General in relation to injunction proceedings

119              This clause provides for the Attorney-General to intervene in and contest or argue any questions arising in any proceedings under clause 21 (injunctions).

120              Subclause 22(1) provides that, where an application is made under clause 21 by a notifying entity or a member, agent or officer of a notifying entity, it is the duty of the Federal Court not to continue the proceedings unless certain criteria is met.  In particular, the Federal Court must be satisfied that notice of the proceedings has been given to the Attorney-General, specifying the nature of the proceedings and a reasonable time has elapsed since the notice was given to the Attorney-General of the question of intervening in the proceedings.  That is, the Attorney-General must be consulted in relation to the proceedings.

121              Subclause 22(2) provides that the Federal Court may take certain actions.  That is, the Federal Court may:

·          adjourn any proceedings under clause 21 (injunctions) for any time as it thinks necessary and may make any order as to costs in relation to such an adjournment as it thinks fit (paragraph (a));

·          direct a party to give notice in accordance with subclause 22(1);

·          continue to hear evidence and argument concerning matters severable from the application made under clause 21 (injunctions).

122              Subclause 22(3) provides the circumstances in which notice is to be provided to the Attorney-General.  That is, a notice in relation to proceeding is taken to have been given to the Attorney-General if steps have been taken that, in the opinion of the Federal Court, could reasonably be expected to cause the matters to be notified to be brought to the attention of the Attorney-General (paragraph 22(3)(a)).  Notice is not required where the Electoral Commissioner is a party to the proceedings (paragraph 22(3)(b)).  

123              Subclause 22(4) provides that the Attorney-General may authorise the payment by the Commonwealth to a party in relation to costs arising out of the adjournment of proceedings due to clause 22. 

124              Subclause 22(5) provides that the Federal Court is able to proceed without delay to hear and determine proceedings, so far as the proceedings relate to the grant of urgent interlocutory relief, where the Federal Court thinks it necessary in the interests of justice to do so. 

Clause 23 - Intervention by the Attorney-General

125              This provision set out where the Attorney-General may intervene in proceedings relating to injunctions (clause 21).

126              Subclause 23(1) provides that the Attorney-General may, on behalf of the Commonwealth, intervene in proceedings under clause 21 (injunctions) that are brought by a notifying entity, or a member, agent or officer of a notifying entity.

127              Subclause 23(2) provides that, where the Attorney-General does intervene under subclause 23(1), the Federal Court may make any order in the proceedings as to costs against the Commonwealth as the Federal Court thinks fit and, for the purposes of instituting and prosecuting an appeal from a judgment in the proceedings, the Attorney-General is taken to be a party to the proceedings.

128              Subclause 23(3) provides that, where the Attorney-General institutes an appeal from a judgment given in proceedings in which the Attorney-General has intervened under this section, the court hearing the appeal may make any order as to costs against the Commonwealth as the court thinks fit.   

Clause 24 - Evidence of authorisation of material

129              Clause 24 relates to evidence of authorisation of material, and allows for the admissibility of certain evidence in proceedings for contravention of a civil penalty provision in the Act.  Evidence that a communication of marriage law survey matter that includes a statement that it was authorised by a specified person is admissible as evidence of that fact.  A communication of marriage law survey matter that includes a statement that a specified person was the printer of the communication is admissible as evidence of that fact.

 

Clause 25 - Administration of Act

130              Clause 25 provides that the Electoral Commissioner has the general administration of the Act, except for clauses 10, 11, 12, 15 and 16 as these provisions deal with broadcasting (administered by ACMA) and vilification.

 

Clause 26 - Delegation by the Electoral Commissioner

131              Clause 26 provides that the Electoral Commissioner may delegate all or any powers, duties or functions under the Act to an officer of the Australian Electoral Commission within the meaning of the Electoral Act, or any other members of staff of the Commission referred to in section 29 of the Electoral Act.  Under subsection 4(1) of the Electoral Act, ‘officer’ is defined to include a broad range of specified officers.  This delegation is required for efficiency in administering the powers, duties or functions under the Act, across various geographical locations.  Consistent with the delegation, the delegate must comply with any directions of the Electoral Commissioner in exercising any power or performing any duties or functions under the delegation (subclause 26(2)). 

Clause 27 - Sunset provision

132              Clause 27 provides for the repeal of the legislation after the end of the limitation period.

Clause 28 - Rules

133              Subclause 28(1) provides that the Electoral Commissioner may, by legislative instrument, make rules prescribing matters required or permitted by the Act to be prescribed by the rules, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.  This provision will allow for additional rules to be made to assist in giving effect to the Act.  The rules that can be made are subject to the specific limitations mentioned in subclause 28(2), which are included to avoid doubt.