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Australian Electoral Commission rejects legislation to outlaw push polling in its submission to the Joint Standing Committee on Electoral Matters

MONICA ATTARD: The Australian Electoral Commission has rejected the notion of legislating to outlaw the campaign technique described as push polling. But the Commission's submission to a parliamentary inquiry on the issue has received a mixed reaction from the major political parties. Both Labor and Liberal deny they've used the technique but have each accused each other of doing so. There are claims that push polling has been used in the last Northern Territory election, the Federal Canberra by-election and the recent State elections in both New South Wales and Queensland.

The Electoral Commission says legislation could be ruled unconstitutional and the best checks on this type of negative campaigning are a free press and a well-informed electorate. But the President of the ACT Labor Party, Federal MP John Langmore, says there should be strong action against push polling. Mr Langmore told Lyndall Curtis in Canberra it's vital to the quality of political life in Australia that the technique be banned.

JOHN LANGMORE: Push polling involves spreading ideas which are completely inaccurate or defamatory and it is entirely unethical. So far, the Liberal Party, at least, hasn't categorically rejected its use. They did use it in the Canberra by-election. If it is not outlawed, there is a risk that it will be used by all parties, in which case the quality of Australian political life will be permanently damaged.

LYNDALL CURTIS: Why shouldn't the onus be on the political parties, themselves, not to use the tactic? Are you saying that political parties can't be trusted?

JOHN LANGMORE: I'm saying that it's very difficult to achieve that prohibition unless it's enacted in law because there is always a risk that one party will say that the other is doing it, therefore we'll do it, even if they're not. And if one edges in that direction, then the other will edge a bit further and before we know where we are all parties are doing it. And I think it is better, since it is so potentially seriously damaging, that it be prohibited.

LYNDALL CURTIS: Why don't you accept the Electoral Commission's submission that legislating against push polling could be ruled unconstitutional on freedom-of-political-discussion grounds?

JOHN LANGMORE: Because I think the potential risk of that is just too great. It may well be legally difficult to distinguish between the completely unethical, inaccurate activity of push polling and free political discussion, but it surely must be legally possible. And given the importance of this issue, I think it is essential that a lot of intellectual effort go into attempting to draft such legislation. If that doesn't happen, then the quality of open political debate will be seriously undermined, itself. So, I see it as a necessary condition for the kind of free political discussion that everyone, including the Electoral Commission, want.

LYNDALL CURTIS: Do you accept that both the major political parties have been engaged in using the tactic?

JOHN LANGMORE: Well, I haven't seen evidence of Labor using it. It is alleged that it has done so. I haven't seen that evidence. But I have seen the written evidence of its use in the Canberra by-election.

LYNDALL CURTIS: Is it too hard to define what the difference is between push polling and simply negative campaigning?

JOHN LANGMORE: No, I don't think so. If it can be shown that something is entirely inaccurate then it should, surely be possible to write legislation which outlaws such inaccuracy and, provided it's on the statute books, then if it ever happens, then immediately the party or the person affected can go to the Electoral Commission and say, 'You should stop this,' rather than depending, simply, on the laws of defamation which take years to enforce.

LYNDALL CURTIS: If it is not possible to legislate against push polling, if the parliamentary inquiry doesn't recommend that there be legislation, is the Labor Party willing to commit itself not to using the tactic?

JOHN LANGMORE: Well, I very much hope so. I mean, I can't .. I'm not in a position to speak for the Labor Party. I can speak for the ACT Party and we certainly wouldn't do it, because I'm President of the ACT Party, but I can't .. I'm not in a position to make that guarantee on behalf of the national party. I very much hope that it would undertake not to be unethical in this way, but it creates a great difficulty for a party if the other party is not accepting that commitment. I do know, by the way, that the Liberal leadership do want to stop this happening, as well. So, I do have some confidence that there would be bipartisan support for legislation if it could be designed. And I think that's a real sign of hope.

MONICA ATTARD: John Langmore. Well, the Liberal Party believes current laws can sufficiently deal with any instance of push polling. Federal Deputy Party Director, Lynton Crosbie, told Lyndall Curtis that there are problems with legislating against the practice.

LYNTON CROSBIE: We don't employ push polling. We note that the Labor Party used it in the Queensland State election recently, so we do have some concerns about the way it has been employed.

LYNDALL CURTIS: Do you believe it is a practice that should be stamped out?

LYNTON CROSBIE: We believe that it is not a practice that we'd support, particularly where it relates to the sort of activity the Labor Party undertook in Queensland where they consciously and openly asked questions they knew not to be true about a particular political party's policies.

LYNDALL CURTIS: Would it be difficult to regulate or introduce some sort of law against push polling?

LYNTON CROSBIE: Well, there are already laws .. provisions within the Electoral Act that govern defamation and other claims about a candidate or a party. So, there are laws in place. It is really a case of making sure that the laws in place work appropriately and I think, to date, that has not always been the case.

LYNDALL CURTIS: The Commission says it would be difficult to define, precisely, what is push polling, what the difference is between simply negative campaigning and campaigning which may be false and defamatory. Is that one of the problems with trying to legislate or trying to regulate this area?

LYNTON CROSBIE: Yes, it is a problem. We saw at the last Federal election that the trade union movement rang many of their members and others in the community alleging that Coalition policies would cause all sorts of problems which, of course, were not true. And how do you counter that sort of technique? It may not be a poll, it may not be dressed up as a poll, but it may be the use of telephone to spread misinformation about a party or a candidate's views.

LYNDALL CURTIS: The Commission says the best antidote to push polling is a vigorous and free press and a well-informed electorate. Is that enough?

LYNTON CROSBIE: Well, I think that we benefit in Australia from a robust political debate and I don't think anyone would want to constrain that. I think that we have to recognise that in a democracy you need a good challenge of ideas and a robust debate, as I say, and I think there is a maturity about the Australian public that they'll make a judgment about a political party based on the claims it makes.

LYNDALL CURTIS: Should the onus be on the political parties, themselves, not to engage in the tactic rather than on the press or the electorate to find out about it, and then complain about it?

LYNTON CROSBIE: Well, as I said, the Electoral Act already sets down some quite clear rules as to what you can and can't say about a candidate or about how people should cast their votes. There are rules there. But we do have to always ensure that the law is up to date with the techniques that can apply.

LYNDALL CURTIS: There have been several claims of push polling from the 1994 Northern Territory elections, through to the Queensland elections: claims that both sides of the political fence are engaging in this activity. That's despite the opposition to it. Is the tactic here to say or will parties, themselves, stop using it?

LYNTON CROSBIE: Well, look, the Liberal Party of Australia's never used push polling. We've made that point before. In relation to the Queensland election, the State Director of the Labor Party acknowledged that they were asking questions they knew to be untrue. Now, in the end, I think they carried the price for that activity. As we've seen they failed to get a majority of votes on a two-party-preferred basis at that election.

LYNDALL CURTIS: What will your submission to the parliamentary inquiry be recommending?

LYNTON CROSBIE: Well, we'll be canvassing the performance of push polling in the Queensland election and the role it played for the Labor Party in their campaign, there. We'll be looking at the difficulty that does exist, to a certain extent, in controlling what people say in an election context. Because if you ban push polling as it's been defined, how do you deal with other telephone canvassing, for example, where telephone contact is made, such as trade unions did at the last Federal election with their members, making all sorts of claims about Coalition policies that were untrue but were not disguised as a poll?

I mean, it is very difficult to know where you start and finish when you endeavour to regulate this sort of activity. In the end you've got to have clear guidelines that govern areas such as defamation and misleading voting, but it is a difficult area.

LYNDALL CURTIS: If push polling dies out as a political tactic, do you think other negative tactics will simply replace it or that both political parties now acknowledge that the problem with negative campaigning is that the voters simply don't like it.

LYNTON CROSBIE: Well, look, I don't think negative campaigning in one sense is anything new. We saw, at the last Federal election, many wild claims about Coalition policies which have been shown to be untrue but which were used by Labor in a desperate attempt to hold onto office. Now, you are always going to have a measure of negative campaigning in an election environment because of the emotion that's raised and so forth. It's a very difficult issue to address.

MONICA ATTARD: Lynton Crosbie speaking there, to Lyndall Curtis.