Zali Steggall (Warringah, Independent) Share this | Hansard source

by leave—I move amendments (1) to (3), as circulated in my name, together:

(1) Schedule 3, item 2, page 11 (line 26) to page 12 (line 2), omit subsection 3AA(4), substitute:

Rebuttable presumption for certain matters

(4) Without limiting subsection (1), the dominant purpose of the communication or intended communication of matter that expressly promotes or opposes:

(a) any of the referendum options; or

(b) a person or entity associated with any of the referendum options;

is presumed to be the purpose referred to in subsection (1), unless the contrary is proved.

(2) Schedule 3, page 16 (after line 30), after item 17, insert:

17A After Part IX

Insert:

Part IXA — M isleading and deceptive political advertising

111 Definitions

In this Part:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

publish means communicate by any means, including by print, radio, television, internet or telephone.

112 Ref erendum matter that is misleading or deceptive etc.

Referendum matter that is misleading or deceptive etc.

(1) A person must not print, publish or distribute, or cause, permit or authorise to be printed, published or distributed, referendum matter if the matter contains a statement purporting to be a statement of fact that is:

(a) misleading or deceptive to a material extent; or

(b) likely to mislead or deceive to a material extent.

Example 1: Referendum matter that states that a person or entity associated with any of the referendum options made a statement that that person or entity did not make.

Note: See also section 122 (Misleading or deceptive publications etc. in relation to the casting of a vote) of this Act.

Impersonating or passing-off

(2) Without limiting subsection (1), a person must not engage in conduct if:

(a) the conduct is likely to cause another person to believe any of the following in relation to referendum matter that is printed, published or distributed:

(i) the referendum matter is printed, published or distributed by a particular person or entity associated with any of the referendum options;

(ii) a particular person or entity associated with any of the referendum options authorised the referendum matter to be printed, published or distributed;

(iii) the referendum matter is authorised by a particular person or entity associated with any of the referendum options; and

(b) that belief would be incorrect.

Example 1: Referendum matter that purports to have been published by a person or entity associated with any of the referendum options but is actually published by someone opposed to that person or entity or opposed to one or more of the referendum options.

Example 2: A pre-recorded telephone message that consists of a voice recording of someone impersonating a person or entity associated with any of the referendum options.

113 Complaints

Any person may make a written complaint to the Electoral Commissioner that another person has breached section 112.

114 Powers of Electoral Commiss ioner

Electoral Commissioner may investigate possible breaches

(1) The Electoral Commissioner may investigate (whether in response to a complaint made under section 113 or on the Electoral Commissioner's own initiative) a possible breach of section 112 if the Commissioner is satisfied on reasonable grounds that the investigation would be in the public interest.

Electoral Commissioner may request person to end breaches

(2) If the Electoral Commissioner is satisfied on reasonable grounds (whether or not following an investigation under subsection (1) of this section) that a person has breached section 112, the Electoral Commissioner may:

(a) ask the person not to print, publish or distribute the relevant referendum matter, or not to cause, permit or authorise the relevant referendum matter to be printed, published or distributed; or

(b) ask the person to publish, or cause to be published, a retraction or correction in specified terms and in a specified way; or

(c) publish a correction.

115 Powers of courts

(1) On application by:

(a) the Electoral Commissioner; or

(b) a person who has made a complaint under section 113;

a court of competent jurisdiction that is satisfied on reasonable grounds that a person has contravened section 112 may order the person:

(c) not to print, publish or distribute the relevant referendum matter, or not to cause, permit or authorise the relevant referendum matter to be printed, published or distributed; or

(d) to publish, or cause to be published, a retraction or correction in specified terms and in a specified way.

(2) The Electoral Commissioner must not make an application under paragraph (1)(a) in relation to a contravention of section 112 unless the Electoral Commissioner has made a request under subsection 114(2) in relation to the contravention.

(3) Without limiting the powers of a court in dealing with an application made under paragraph (1)(b), the court may dismiss such an application if the application:

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) has no reasonable prospects of success; or

(c) is otherwise an abuse of the process of the court.

115A Offence

(1) A person commits an offence if:

(a) the person is subject to a requirement under section 112; and

(b) the person engages in conduct; and

(c) the person's conduct breaches the requirement.

Penalty: 50 penalty units.

(2) In a prosecution of a person for an offence against subsection (1), it is a defence if the defendant:

(a) took no part in determining the content of the referendum matter to which the offence relates; and

(b) could not reasonably be expected to have known that the statement to which the offence relates was misleading or deceptive, or was likely to mislead or deceive.

Note: The defendant bears an evidential burden in relation to the matters mentioned in this subsection (see subsection 13.3(3) of the Criminal Code).

(3) If a person is found guilty of an offence against subsection (1) of this section, the court must take the person's response to any relevant request under subsection 114(2) into account in deciding the penalty for the offence.

(4) Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (1) of this section.

17B Section 122 (at the end of the heading)

Add "in relation to the casting of a vote".

17C After subsection 139(10)

Insert:

This section does not apply in relation to contraventions of Part IXA

(10A) This section does not apply in relation to a contravention of, or an offence against, Part IXA (Misleading and deceptive political advertising).

(3) Schedule 3, item 20, page 17 (after line 15), at the end of the item, add:

(3) Section 112 of the Referendum (Machinery Provisions) Act 1984, as inserted by this Schedule, applies in relation to referendum matter printed, published or distributed on or after the commencement of this Schedule, regardless of when:

(a) the writ for the referendum to which the referendum matter relates was issued; or

(b) when the content of the matter was approved.

These amendments seek to prevent misleading and deceptive advertising in the upcoming referendum campaign. These amendments, which will prohibit misleading or deceptive political advertising and referenda advertising, are a practical, popular and proven way to clean up our politics. They approach the regulation of political advertising with caution and respect for our constitutional freedom of political communication.

They are also urgent. We live in a world where our democracy is under attack from disinformation. A vote based on lies and misleading information lacks social licence and divides our communities. It lacks legitimacy and erodes trust in election results. As Brexit demonstrated, referenda are particularly vulnerable to misinformation and disinformation. In his review of every Australian referendum, Scott Bennett concluded that a great deal of exaggeration and distortion is standard fare. Already, baseless claims that the Voice would constitute a third chamber of parliament have polluted the public debate. For this reason, Professors Gabrielle Appleby and Lisa Hill last year recommended enacting truth in political advertising laws to protect the legitimacy of the referendum. Social media companies, such as Facebook, have voluntarily removed misleading and deceptive advertisements from their platforms, based on advice from the RMIT Fact Check team.

Almost three-quarters of Australians came across false political advertising during the 2022 federal election campaign. Australians were relentlessly targeted with SMS advertising making all sorts of wild claims. We should have protections against this type of attack in advance of the referendum. Nine out of 10 Australians want truth in political advertising legislated in advance of the next election. Really, in this context, the 'next election' will be this referendum. We should have these protections in place to have a debate grounded in facts that the public can rely on.

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