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Joint Standing Committee on Electoral Matters
11/11/2016
Conduct of the 2016 federal election and matters related thereto

ORR, Professor Graeme, Private capacity

[14:46]

Evidence was taken via teleconference—

CHAIR: Good afternoon, Professor Graeme Orr. I welcome you to this hearing this afternoon. Do you have any comments on the capacity in which you appear?

Prof. Orr : I am a professor of law at the University of Queensland, but I am appearing in a private capacity.

CHAIR: Thank you. Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and therefore has the same standing as proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege. I now invite you to make a brief opening statement before we proceed to discussion.

Prof. Orr : I thank the committee, and Mr Monk of your secretariat particularly for arranging this appearance. I am on leave, heading to Hobart oval with a pile of exams to mark! I apologise that I have to appear via mobile phone. If I talk slowly, do not be offended, but also do not make jokes about Queenslanders' drawls!

Senator IAN MACDONALD: Half the committee are Queenslanders, so we won't do that!

Prof. Orr : Okay. I understand your focus today is the authorisation of political or electoral material. Briefly, I have five opening points.

The first is that, as a matter of principle, there are two principles at play. I heard you earlier talking about the idea of traceability, which I guess is incidental to political fairness. But there is another principle. The principle is of better deliberation—voters being able to know the real source of electoral statements, and that was recognised in 1912 by the High Court. The traceability side of it, really, in the old days was handled by the idea that the publisher, the physical publisher and printer of the material, had to be listed, which explains that sort of odd quirk still remaining in the law. I think I heard Senator Leyonhjelm is there. You will sometimes hear arguments in favour of anonymity, so I think you do need to consider the political freedom, particularly of, say, public sector workers, who will require some anonymity in their personal political expression, especially in new media forms. They will still of course face employment guidelines and sanctions if they are actual public servants, but it is another matter to have penal laws that might apply to anonymous blogging or texting.

My second point is that the focus of your concern, I hope, is going to be on mass distribution. As you know, traditional advertising and flyers are covered by old rules in the Electoral Act; traditional TV and radio are covered in the Broadcasting Act; and what we are talking about, I guess, is a modern analog, particularly via the net or mass texting. I know you were animated by recent events involving ALP Medicare material, but please also consider how it is that parties send out postal vote applications with return envelopes that disguise their partisan source. Every election, I get upset citizens contacting me about that—sometimes upset enough to want to threaten litigation—and I have to explain that it is legal.

The third point is that you might want to consider banning political spam advocacy, particularly via SMS—in other words, bringing it clearly under the umbrella of the Spam Act. Unfortunately, authorisation is a form of disclosure, and we know that disclosure is a cat-and-mouse game in electoral law. Party activists have long, on occasion, used stooges or front persons to authorise material to disguise its party source, and that is even when they have not resorted to outright anonymity, as in the Lindsay case. I think if you look to modern how-to-vote card rules, which have positive requirements not only about legibility of disclosure but also about requiring party abbreviations, it is much more meaningful to voters than simply having anonymous Mr X authorising material. Also, you probably have to think about meaningful penalties, by which I mean consider how, in New South Wales, in their finance disclosure law, there are administrative penalties, including reductions of public funding, if a party is found to be non-compliant. There are also longer time limits for prosecutions under that new regime. One of the problems we have had in electoral law generally is time periods for prosecutions. Ultimately there is no magic bullet. It seems to be a cultural problem of negative advertising and sometimes an ethical dodginess that, as far as I can see, sometimes starts in student union elections with budding activists.

The final point—and I will finish here—is: do consider the breadth of your powers. You are the Commonwealth parliament. You have power over telecommunications and broadcasting generally, so you could require authorisation of material affecting state and local elections, or even politics generally, and not just narrowly consider Commonwealth elections. So you do have power to cover robocalls, internet, SMS, electronic communications and things that we cannot yet dream of. And you have that power at all level of elections. Whereas, with print and tangible messages, like the flyers you were talking about and the so-called Medicare card, you can only regulate on matters impacting Commonwealth elections or referendums.

CHAIR: Thank you very much for your very insightful written submission and also for addressing so comprehensively what we are looking at here today. We are very appreciative.

Mr GILES: Thank you, Professor Orr, and I hope you enjoy Hobart. We hope to enjoy our time there too. I should note that your deliberations on section 44 have proved very prescient.

Prof. Orr : I think I am appearing on the 25th from my home state of Queensland, so hopefully we can talk more about—

Mr GILES: Yes, the High Court may have given us some more guidance by then, of course. I wanted to explore with you your reference to the breadth of our powers in what we might say are new or newer media. I was very interested in what you said about us effectively banning mass SMS techniques. Could you give us some thoughts on the implications of the implied freedom on such Commonwealth regulation?

Prof. Orr : The architecture of the Spam Act 2003 is to say that general unsolicited commercial messages— goods and services, cold calling, selling—particularly en masse, through SMS or email, are prohibited. I think a lot of electors would prefer not to receive unwanted, unsolicited political SMS messages, particularly because people see mobile phones as very close to them. I think emails are quite different—they are more like the old-fashioned letterbox. This goes back to at least 2004, with a well-known case on the Gold Coast. I cannot say—I am not a professional—whether these forms of campaigning are useful or parties are just doing them to try them out, to raise an issue; I do not know. I do not think there would be a problem with the implied freedom of political communication, because it is a bit like the duck hunting case of Mr Levy. He did not have to be on the duck flats to protest the duck hunting, although he said it would give him more TV coverage if he had pictures.

Similarly, I am not sure that the unsolicited use of limited broadcast or SMS space is something where the High Court would say that a prohibition on that, limited to unsolicited political advertising, is problematic, because there are so many other ways in which you can get your message across. It is a bit like saying that if there was a rule that says it was trespass if you went on someone's property to door-knock, would that really be a breach of your implied freedom to reach out to people inside their homes? I do not think so. I know a lot of electors might want it banned. The other approach is simply to make sure that the Spam Act or, more narrowly, the Electoral Act, cover SMS and other more modern forms of the equivalent of a flyer.

Senator LEYONHJELM: I want to go back to something that you touched on in your introductory remarks. That is the issue of whether we need to be able to identify somebody associated with political advertising. I have asked several previous witnesses this. You are probably well aware that my approach to these things is that in the absence of a compelling reason you do not regulate. What do you think is the compelling reason that requires us to identify who is responsible for political advertising?

Professor Orr : It is a long principle in our system. By 'our system' I mean the common law outside the United States. I understand that you might come from a more first amendment approach. There are two bases for it, as I said at the start of my remarks. One is about traceability. It is fair on political rivals and the media to be able to trace the source, particularly if they want to claim that it is misleading or defamatory. We are talking about breaches of the law like section 328A in relation to misleading electors. The second ideal, and a broader and deeper one, I think, is good deliberation. Just as, I imagine, you would want to know that the Commonwealth was spending millions of dollars on, let's say, a controversial government advertising campaign, you would like electors to know that it is their taxpayers' money being used, that it is the government speaking.

So when we think about politics, I am not sure that we should have distinct rules between what we expect of tagging of government advertising and of general political material. I do understand, as I said, that there may be sensitive classes of people, particularly those in the public service and other roles, whose own private behaviour should not have to be authorised. That is the current state of the act. It says that on the internet it is really only paid advertising—in other words, by political parties or activist groups—that has to be authorised on the internet, and not you or me blogging in a private capacity, where we are speaking like a bird on the corner rather than like a political machine.

Senator LEYONHJELM: That makes sense. You distinguish between blogging and mass distribution, in terms of traceability and deliberation aspects, yet you can have hundreds of thousands of followers on Facebook; you can put a post there that is totally erroneous and misleading, which would be quite scurrilous in many quarters; and yet there is no authorisation. In Facebook you do not have to use your true identity, so traceability is limited. In practical terms, are we talking about an unachievable principle?

Professor Orr : Obviously new media makes things more difficulty in some respects and less difficult in some respects. IP addresses and Facebook might have some traceability, although you then have to start litigation and eventually sometimes get a court order for them to disclose that. On the idea that someone might have hundreds of thousands of followers, I am not sure if that is realistic if they are an anonymous non-celebrity, but I take your point. You might tweet something, someone else retweets it, then it catches on like fire, and then what can be traced? It is only the original tweet. But just because you cannot enforce a principle perfectly does not mean that you would not try and enforce it. I take the point that some of the material at the last election—at every election, let's face it—flies very close to the law and certainly does not meet the spirit of the original purposes of the law.

Senator LEYONHJELM: Thank you. My final question would be: if there is traceability and sufficient information to ask, 'Who is saying this?'—taking it into account in deliberation—do you think it matters how that is achieved? We are talking here about the term 'platform neutral'. Do you think it makes any difference whether it is printed, internet, SMS or whatever, as long as that traceability is achieved?

Prof. Orr : I am particularly concerned, I guess, about the deliberative ideal of people knowing the real source. You do have current legislation with how-to-vote cards, but some other legislation that also requires—if it has been authorised effectively on behalf of a party, it should have the party label. We now have registered party abbreviations; they can be used. As I said before, there is also the ability to have internet links and a website, which is part of the Spam Act approach—to say that you should be able to trace this, unsubscribe, complain, and so on. I would prefer, subject to technicality, content neutrality—I do not mind. The basic principle is that it should be clear—relatively legible fonts when you are talking about printed material—and there should be a simple form of authorisation that, if the matter really is traced to a political party, they will be subject to loss of public funding if they have been effectively getting around the law by having a front person authorise the material. In that sense, regarding how-to-vote cards, the Commonwealth and most of the states moved to have a stricter form of regulation, because it was such a sensitive area when it came to parties ambushing other parties with second-preference how-to-vote cards.

Senator LEYONHJELM: Thank you.

CHAIR: Thank you very much. Senator Macdonald or Mr Morton, any more questions? Mr Dick?

Mr DICK: No. Thank you, Professor, for your very worldly, wise comments.

CHAIR: Professor Orr, thank you very much for joining us here today, and we very much look forward to hearing from you in person in Brisbane on the 25th. I thank you again for the very thought-provoking and discussion-provoking issues you have raised with us today.

Prof. Orr : I will see you in a fortnight.

CHAIR: You will be sent a copy of the transcript of your evidence and will have the opportunity to request corrections to transcription errors. We will see you on the 25th, Professor Orr.

Prof. Orr : Until then; good luck.

CHAIR: I thank all the witnesses today, I thank the secretariat staff for your fantastic contributions to get us to this point so quickly, and thank you very much to Hansard and broadcasting.

Committee adjourned at 15:02