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Tuesday, 16 October 1984
Page: 1721

Senator HARRADINE(11.13) —Senator Robert Ray's contribution indicates to me that what has been said by Senator Macklin does have a great deal of validity and that if we had time to develop more provisions which would clarify what was the purpose of putting the new section 161 into the legislation, we ought to do so. Apparently it is now not challenged that what is being proposed by Senator Macklin-that is, to retain in essence what was so recently put in the legislation-is the correct way for the Parliament to proceed. I submit that it is the correct way for the Parliament to proceed. When the Commonwealth electoral legislation was being debated previously, there were amendments to take out the bulk of Part XVII concerning electoral offences. If we refer to the Commonwealth Electoral and Referendum Amendment Bill we see that sections 154 to 162 of the principal Act were repealed. I had in mind that, if the House of Representatives were still here, we should pass a further amendment and include some of those clauses which were repealed by the Commonwealth electoral amendment legislation. We were given to understand-certainly the inference was there-that nothing that was being placed in the new legislation, and thus repealed in the old legislation, would undermine in any way the political or civil rights of individuals or groups within the electoral system.

Senator Gareth Evans —Madam Temporary Chairman, I raise a point of order. As I understand it, we are debating a particular amendment moved by Senator Macklin in relation to the deceptive advertising provision. I think it might better suit the convenience of the Committee, if not necessarily the Standing Orders, were Senator Harradine to wait just a moment until we dispose of that amendment.

The TEMPORARY CHAIRMAN (Senator Coleman) —On the point of order, I was listening very closely to Senator Harradine. I thought that he was in actual fact relating to a later clause in the Bill. We are referring to clause 5 and the amendments that have been moved by the Australian Democrats.

Senator HARRADINE —I go on to say that what was done in the new section 161 was to repeal the old section 161 and replace it. I acknowledge and I accept your ruling and I will come to that matter at a later stage in the Committee debate. I warn people that I will be referring to the repeal of old section 158 and the introduction of a new section 159, how it has undermined the civil and political rights of people in this country, or how it could be argued to have undermined the civil and political rights of people in this country. I observe your ruling, Madam Temporary Chairman, and will confine myself to section 161. Old section 161 contained the words that are now complained of by Senator Robert Ray. The old section 161 dealt with:

Printing, publishing or distributing any electoral advertisement, notice, handbill, pamphlet, or card containing any untrue or incorrect statement intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his vote.

As we all know, that has been defined by the courts to relate to the actual casting of the vote by an elector. It is apparent that the Government, through whatever department it came, believed that that was too narrow. An amendment was drafted to the legislation and that amendment is in the form which now reads:

A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit or authorize to be printed, published or distributed, any electoral advertisement containing a statement-

(a) that is untrue; and

(b) that is, or is likely to be, misleading or deceptive.

The Government now proposes to delete that provision. Senator Macklin proposes to retain that provision but in a way that makes the persons who are responsible for preparing and authorising the advertisements to be responsible. It enables candidates who are directly affected to have immediate redress. The argument that was raised by Senator Ray in his contribution, namely, that it is very difficult to get to the facts and that really the concept of fact is a very difficult concept for the mind to grapple with, is rather strange. I would have thought that that was existentialism in its extreme.

The question 'what is truth' has been bandied about over the centuries. Of course, there is such a thing as objective fact. There is objective truth. The Government is committed to truth in advertising. It has observed that principle in legislation dealing with consumer protection. Now, when it comes to the question of electoral advertising, we see an attempt to take out that principle. What is suggested here was suggested in the House of Representatives, where a Government spokesman said:

Basically, we are recommending the repeal of the section, thus leaving the decision as to whether political advertising is true or false to the electors and to the law of defamation.

Let us look at those two aspects. There are no votes in the law of defamation-no votes at all. Letting the people judge might be all right if all other things are equal. However, all other things will not be equal in this election-for example, public funding in addition to all of the other money that is available to the major political parties. Roughly $3.6m will be made available by way of public funding to the Australian Labor Party, $3.3m to the Liberal-National Party Oppo- sition--

Senator Robert Ray —It would be a bigger gap than that.

Senator HARRADINE —I am going on past figures. Perhaps half a million dollars will go to the Australians Democrats and about $9,300 or so to my group.

Let us have a look at a situation where one of the major political parties indulges in the distribution of leaflets which it authorises and which contain statements that are untrue.

Senator Robert Ray —It's only advertisements.

Senator HARRADINE —They are advertisements. Let us consider the honourable senator's definition in terms of a full page advertisement in a newspaper or, worse still, a 60-second advertisement on television which contains misleading or untrue statements. What chance to minor groups or independents have to overcome that disadvantage? What chance have they got to allow the public to be informed of the truth of the matter? They do not have any chance, so all other things are not equal. They are not even equal insofar as Australian Broadcasting Corporation free time is concerned. We could have a situation, as occurred in a previous election, in which ABC free time was used to make, by inference, an untrue statement about another candidate and that other candidate was not permitted in ABC free time the opportunity to dispel that incorrect statement. About three weeks ago I asked the General Manager of the ABC, Mr Whitehead, what his proposals were in respect of free time. He has not as yet responded.

Let us go to the question of the referenda, bearing in mind that the move by the Government to take out of existing legislation the requirement for advertising to be truthful also applies to referendum legislation. I should think that defamation would not apply in that respect. We are told by the Government to leave it to the defamation laws and to the electors, but a statement in free time could be made, for example, about the referendum by the political parties. What availability is there for other people who may have exercised their rights and constitutional duties in this place to vote for or against the legislation to be part of the preparation of the case? While I am on that subject, I might ask the Attorney-General--

Senator Gareth Evans —Spare us.

Senator HARRADINE —No, I must ask the Attorney-General whether the free time made available on the Australian Broadcasting Corporation through taxpayers' funds for the Yes and No cases is to be made available to the political parties or to those who exercise their constitutional responsibility in this place to vote for or against the proposition so that they can be part of the preparation of the appropriate documents.

Senator Peter Rae —The latter was the case in the 1977 referendum.

Senator HARRADINE —I thank the honourable senator for that information, but I am just asking the Attorney-General-I have Mr Whitehead in mind-whether he has departed from that on this occasion.

Senator Gareth Evans —Do you reckon you can con the Opposition into giving you a guernsey on this?

Senator HARRADINE —No, I do not. Will the Attorney respond to that direct question? I simply say that Senator Macklin has made out a very good case for retaining the provision that was so lately put into the legislation and that was adopted unanimously by this Parliament, not only by the Senate but also by the House of Representatives. The ink is hardly dry on the statute and the Government is trying to take it away, and it is trying to take it away just before an election. I think the onus is on it to say why it is doing that. It is just not proper and makes no sense to leave this matter to the laws of defamation and for the people to judge when all other things are not equal.