Nick Xenophon (SA, Independent) Share this | Hansard source

There has been a slight scheduling problem—it has been a pretty extraordinary day. I have amendments that I wish to move to this bill. These will be circulated in the chamber at any moment. I do not want to delay the committee stage of this bill, but I do want to put on the record my concerns and to move these amendments. I thought that this was going to be dealt with a little later on, but it has been a moveable feast this morning. To save time, I will speak to the intent of my proposed amendments.

Very shortly I will be moving amendments relating to misleading or deceptive conduct. These amendments relate to what occurred in the South Australian state election just three months ago—as Senator Ronaldson made reference to—and the abuse of how-to-vote cards. Labor Party operatives—to put it objectively—were masquerading as Family First, or handing out how-to-vote cards and wearing t-shirts and conducting themselves as though they had a link to Family First. It has been something that I think this government has disassociated itself from, and it needs to be sorted out.

My concern is that, in order to close this loophole, there needs to be an amendment relating to misleading or deceptive conduct, so that a person would commit an offence if the person engages in conduct or authorises another person to engage in conduct during an election and that conduct is likely to mislead or deceive an elector in relation to the casting of a vote. These amendments provide a defence if the person proves that he or she did not know or could not reasonably be expected to have known that the conduct was likely to mislead or deceive an elector in relation to the casting of a vote. Also under these amendments, the Australian Electoral Commissioner would have the power, if they are aware of this—and particularly on election day, when the polling is taking place—to request that the person desist from that conduct. In addition, if the court is satisfied, in proceedings for an offence under this section, that a person has engaged in conduct that is likely to mislead or deceive an elector in relation to the casting of a vote, the court may order that person to desist from that conduct.

These amendments broaden the circumstances to deal with the issues that arose out of the South Australian election. I know Senator Fielding and others have been very concerned about this. This is a situation where conduct is caught within these proposed amendments. The current laws do not address this sort of conduct, and my concern is that, even as amended, the current laws do not address the issue of conduct. The issue of printed material is dealt with but, for instance, the issue of t-shirts, which are not incorporated as printed material for the definitional purposes of our electoral laws, and the baseball caps and other material not covered under the requirement for a how-to-vote card authorisation are not covered.

So, with respect to the government, I think that the government’s amendment is a half-hearted amendment. It is of course welcomed but it does not deal with the mischief that took place on election day in South Australia just three months ago. My concern is that, unless and until we deal with the issues of conduct, there will not be a remedy to this sort of behaviour and this behaviour can continue unabated. That is my concern.

I would be grateful if the various parties could indicate their position in relation to my proposed amendments. I will not seek to divide with respect to the amendments, pursuant to a previous agreement, but I would like to know what the position is of the parties in relation to these amendments. I seek leave to move amendments (1) and (2) together.

Leave granted.

by leave—I move amendments (1) and (2) on sheet 6152:

(1)    Page 9 (after line 5), at the end of the bill, add:

Commonwealth Electoral Act 1918

1  After section 329

Insert:

        (1)    A person commits an offence if:

             (a)    the person either:

                   (i)    engages in conduct; or

                  (ii)    authorises another person to engage in conduct; and

             (b)    that conduct occurs during the relevant period in relation to an election under this Act; and

             (c)    that conduct is likely to mislead or deceive an elector in relation to the casting of a vote.

Penalty: 

             (a)    if the offender is a natural person—$1,000 or 6 months’ imprisonment; or

             (b)    if the offender is a body corporate—$5,000.

        (2)    In a prosecution of a person under subsection (1), it is a defence if the person proves that he or she did not know, and could not reasonably be expected to have known, that the conduct was likely to mislead or deceive an elector in relation to the casting of a vote.

Note:   A defendant bears a legal burden in relation to the defence in subsection (2) (see section 13.4 of the Criminal Code).

        (3)    If the Electoral Commissioner is satisfied that, during the relevant period in relation to an election under this Act, a person is engaging in, or has engaged in, conduct that is likely to mislead or deceive an elector in relation to the casting of a vote, the Electoral Commissioner may request the person to desist from that conduct.

        (4)    In proceedings for an offence under this section, the court may take into account a person’s response to a request under subsection (3) in assessing any penalty to which the person may be liable.

        (5)    If the court is satisfied, in proceedings for an offence under this section, that a person has engaged in conduct that is likely to mislead or deceive an elector in relation to the casting of a vote, the court may order the person to desist from that conduct.

2  Application of amendment

        The amendment made by this Schedule applies in relation to elections the writs for which are issued on or after the commencement of the amendment.

(2)    Clause 2, page 2 (before line 1), at the end of the table, add: