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

by leave—I move amendments (1) and (2), standing in my name, on sheet 7071:

(1)   Schedule 1, item 2, page 3 (line 18), at the end of paragraph 3A, add "If, after so checking the signature, the DRO is not satisfied that the signature on the envelope is the signature of the elector, the DRO must make all reasonable attempts to contact the elector within 3 days after the election, to require the elector to provide evidence of his or her identity by the first Friday following the polling day for that election.".

(2)   Schedule 1, item 5, page 4 (line 9), at the end of paragraph 3A, add "If, after so checking the signature, the DRO is not satisfied that the signature on the envelope is the signature of the elector, the DRO must make all reasonable attempts to contact the elector within 3 days after the referendum, to require the elector to provide evidence of his or her identity by the first Friday following the voting day for that referendum.".

These amendments are in respect of provisional votes. In my second reading debate contribution I outlined the nature of the problem. Under the government's bill, signatures of provisional votes will be verified against the electoral database and where the divisional returning officer is satisfied that the signature is accurate that vote is counted. But there may still be some which are not able to be verified for whatever reason. These amendments address those cases, requiring that for those signatures which were not able to be verified the divisional returning officer must make all reasonable attempts to contact the elector within three days of polling day to require them to provide evidence of their identity by the first Friday following the election. The amendments aim to ensure that as many votes as can be counted are counted. It is a halfway house between the government's position and the opposition's position. I think that it is fair, though, in the circumstances to deal with the nub of the problem. I am grateful for the discussions I have had with the Special Minister of State and the shadow special minister of state in relation to this and I look forward to the support of both sides for these amendments.

Question agreed to.

by leave—I move the amendments, standing in my name, on sheet 7072:

(1)   Title, page 1 (line 2), omit "related", substitute "other".

[consequential – misleading or deceptive conduct]

(2)   Clause 1, page 1 (line 7), after "Voting", insert "and Other Measures".

[consequential – misleading or deceptive conduct]

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

Schedule 2—Amendments relating to misleading or deceptive conduct

Commonwealth Electoral Act 1918

1 After section 329

Insert:

329A Misleading or deceptive conduct

(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.

Referendum (Machinery Provisions) Act 1984

2 After section 122

Insert:

122A Misleading or deceptive conduct

(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 referendum period in relation to a referendum under this Act; and

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

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 at the referendum.

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 referendum period in relation to a referendum 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 at the referendum, 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 at the referendum, the court may order the person to desist from that conduct. [misleading or deceptive conduct]

[Application of amendments]

(1)   The amendment made by item 1 of this Schedule applies in relation to elections the writs for which are issued on or after the commence­ment of this Schedule.

(2)   The amendment made by item 2 of this Schedule applies in relation to referendums the writs for which are issued on or after the commencement of this Schedule.

[misleading or deceptive conduct]

Can I say in relation to my previous amendments that that was quite painless: nothing from the opposition, nothing from the government, just demurring and support. I wish all my amendments were dealt with so simply.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

Don't push your luck, Senator Xenophon!

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

If you talked to us more perhaps they might be!

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

Senator Feeney, sometimes I talk a lot about amendments and they still do not get up. If that were the only criterion, I could do a lot more talking. I do not think I will be so fortunate in relation to these amendments, which relate to misleading or deceptive conduct.

When it comes to casting a vote Australians should be provided with as much truthful and accurate information as possible in the lead-up to polling day and on polling day itself, which is when many voters make their decision on who they will vote for. At last year's South Australian state election, in four key seats Labor party volunteers donned blue T-shirts and handed out how-to-vote cards that read 'Put Your Family First', adding 'and send your preferences to Labor' in smaller print. The Family First candidate was listed in the top spot but then the Labor candidate second without party affiliations. It was clearly intended to lure Family First voters to vote for Labor. That should not be allowed to be repeated, given that Family First gave their preferences to the Liberal Party in their official how-to-vote cards. That is not casting a judgment; it is a question of what was the party intending to do. Clearly, it was misleading in that they were not officially endorsed by Family First.

This, sadly, was not an isolated incident. In the 2006 Victorian election the Liberal Party had handed out how-to-vote cards that resembled the Greens' how-to-vote cards. The amendments will make it an offence for any person to engage in or authorise another person to engage in any conduct which is misleading during an election campaign. The current act is inadequate in dealing with this issue. It states:

(1) A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit or authorise to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote.

But it does not include the potentially misleading T-shirts worn by Labor Party vol­unteers who handed out how-to-vote cards that read 'Put Your Family First" at the 2010 state election. Many Australians make their final decision on who to vote for at an election as they walk towards the school hall polling station, and having handed out how-to-vote cards myself I can attest to that. The information they collect on the way can make up their mind. That is why it is crucial that any representations to them are truthful and accurate, and the amendments will en­sure that. note that both the Special Minister of State and the shadow special minister of state say that this is more appropriate. This matter ought to be the subject of a specific reference to an inquiry by JSCEM, the Joint Standing Committee on Electoral Matters. I would be grateful, in the absence of support for this amendment, to obtain confirmation by both the government and the opposition that it is their intention to do so.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I rise to indicate that Senator Xenophon's amendments as found on sheet 7072 are not supported by the government. In our view, the amendments proposed do not address the fundamental issue of what is the appropriate regulation of misleading and deceptive electoral advertising and related conduct. The government has agreed to examine this issue and to work with the Greens and the Independents to bring forward appropriate regulation in the area that is colloquially known as 'truth in electoral advertising'. The proposed amendments incorporate the existing legal test contained in subsection 329(1) of the Electoral Act, which is:

… is likely to mislead or deceive an elector in relation to the casting of a vote.

This test has been limited by various court decisions and has also been criticised due to its limited operation. In the government's view, it is premature to consider the amendment without the full consideration of whether a wider legal test should be adopted and included in the Electoral Act. On that basis, the government does not support the amendments.

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

Senator Xenophon did accurately predict that the smooth passage through this place of his amendments was not to continue. The opposition was happy to support Senator Xenophon's previous amendments. Although we are not supportive of this bill, we did think that, if this bill were to pass, his earlier amendments would improve it and lead to a higher standard of proof of identification. But in relation to the amendments on sheet 7072 there are questions as to the extent to which the concept of misleading and deceptive conduct which may be appropriate in the commercial sphere is applied in what you might call the political sphere—the area of the contest of ideas. It does have an application, but the extent to which that should be applied is, I think, an open question.

Having said that, I very much appreciate the motives behind Senator Xenophon's amendment: the outrageous behaviour of the Australian Labor Party in South Australia. They do say that imitation is the—

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

And the National Party in 2006!

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I am not aware of that case, Senator. But, as Senator Xenophon pointed out, we do all recall the Labor Party booth workers dressed as Family First booth workers. They say that imitation is the sincerest form of flattery, and I know that is true in a policy sense but I do not think it is true when it comes to booth workers, their appearance and the material that they hand out. That was an outrageous instance, and it is appropriate that Senator Xenophon raised it and sought to find a way to address it. The Joint Standing Committee on Electoral Matters is currently reviewing the 2010 election, and this matter among others is currently being considered. We think that is the appropriate place for that to happen. I know that Senator Xenophon has been in discussions with the shadow special minister of state about ways that that might be further examined, but we think that it is premature at this stage to seek to go further in expanding the use of the concept of misleading and deceptive conduct in the political arena. We therefore will not be supporting the amendments.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I rise to briefly put some observations on behalf of the Australian Greens. I think these are very important amendments that Senator Xenophon has moved. Like him, I am surprised at the bipartisan consensus from the two old parties that the situation certainly needs a bit of a look at at some stage by somebody, and in the meantime they will be combining their numbers to vote this amendment down. I think it is, to go specifically to the matter that Senator Xenophon is seeking to address here around deceptive behaviour and deceptive conduct on polling day, because the kinds of sordid tactics that we have seen deployed against Family First, against the Independents or, on more occasions than I can remember, against the Greens largely benefit one major party or another.

Because of the way that our preferencing system works, you can dress up as a Greens booth worker, hand out a piece of paper that says, 'By all means, vote one Greens, and then go ahead and direct your preference to one of the major parties or another.' That is just one example of highly deceptive conduct that has been seen more times than I can remember at polling booths on polling day. That kind of conduct, whether it is organised by the major parties or not, ultimately acts to funnel preferences away from those whom electors and voters think they are voting for.

We have long supported legislation to ensure truth in political advertising—to take a broader view of the matter—and this is one of the issues that Senator Bob Brown put on the agenda as part of the Australian Greens' agreement with Prime Minister Gillard last August allowing her to form government. Truth in political advertising was very much on that agenda as a way of improving the integrity of our political process. We conceive of that agenda, I suppose, some­what more broadly, so this is a very important component of it.

We believe that legislation to impose controls on political advertising and, in particular, penalties for breaches would enforce higher standards, would improve accountability, would promote fairness in political campaigning and would improve the health of our political system generally. There is conduct that you could not engage in in a commercial sense without falling foul of the Trade Practices Act. For some reason we allow in our political discourse that which would absolutely be illegal if companies engaged in those kinds of practices. People seeking to influence our electoral system, the bedrock of our democracy here in Australia, can get away with it with impunity, so this is a matter that is under active discussion by the Australian Greens at the moment with the government.

Until these matters are set to rest, we will continue to propose amendments to the Commonwealth Electoral Act to make it an offence to publish or distribute, for example, an electoral advertisement which is intended to affect voting in an election that contains a statement purporting to be fact that is inaccurate or misleading. he current provisions in the Electoral Act only extend to statements which are intended to affect the casting of votes; and, of course, as we have seen in the past these provisions have been interpreted very narrowly to apply only to how a voter marks out their ballot paper.

The amendments that the Greens have set out would have extended the truth in political advertising provisions to apply more broadly to all statements or advertisements which are intended or likely to affect voting in an election, not merely on polling day. If the Electoral Commission is satisfied that an electoral advertisement contains inaccurate or misleading materials it may request the advertiser to either withdraw the advertisement or to publish a retraction. That needs to be timely; there is not a great deal of point in having these disputes heard after polling day, by which time it simply does not matter.

Elections are an opportunity for political accountability, and it is extremely critical that representations are accurate and honest. I would have thought that particularly people in this chamber would have an affinity for that. Under the current system it is entirely possible for advertising that contains misrepresentation and outright false statements to go unchallenged and without penalty. There is no real formal avenue for recourse, and the Electoral Commission is actually prevented from it—it is not through a lack of will, it is simply outside their mandate. It is not something they are able to do

This, of course, can be particularly damaging in cases where the advertisements are presented by third parties, which under the current system are not required to identify themselves and therefore make known their own political or ideological position. The Australian Greens have had quite a long history of attacks by third parties who are extraordinarily difficult to identify. You then follow the chain of accountability back, which can take years, to discover exactly who it is who is running misleading, deceptive or outright false advertising in relation to the Greens in an attempt to influence the political system. This is, again, something that we would find simply unacceptable in commercial advertising or discourse.

Although such legislation was enacted briefly in Commonwealth law between 1983 and 1984, it was repealed with the support of both major parties. Opposition to such legislation relies on the argument that it infringes the right of free political communication. I hope that that is an argument that we can set to rest. Truth in political advertising legislation introduced in South Australia in 1985 was found to be constitutionally valid by the High Court. South Australia's legislation does not ban all untruths in advertising, but it relates to inaccurate statements of fact rather than opinions that are found to be untrue. So, at least, there is some recourse there.

The Greens advocate an amendment to the Commonwealth Electoral Act to make it an offence to authorise or publish an advertisement purporting to be a statement of fact when the statement is inaccurate and misleading to a material extent. This is similar to legislation that was introduced in South Australia. Of course, as I have indicated, in the agreement signed between the Greens and the government last September it was agreed that the parties will work together with other parliamentarians to create a truth in advertising offence in the Commonwealth Electoral Act. I would be interested to hear, if either of the major parties care to offer their views on that, as to whether such a proposal has the support of the major parties because I think it goes to the foundation of the way the political debate is conducted in this country.

I congratulate Senator Xenophon for bringing this amendment forward. I think it is a great shame that the major parties have again ducked the opportunity to engage frankly with it, and to at least advance the debate in one important sense.

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

Very briefly, in response: I can indicate that I am grateful that the Australian Greens have indicated their support for this amendment. I will not seek to divide; it is clear that both the coalition and the government oppose it. The one question that I do have for the government—because I think that at least there is an acknowledgement that these matters need to be dealt with—is that I thought we could have dealt with this specific issue, where there is an anomaly and where there has been an abuse that was manifest at the South Australian state election in 2010, although, I know that Senator Feeney, who has got the carriage of this bill, was the architect of the Labor Party's stunning win in South Australia in 2006—

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

No!

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

I am sure he was, apparently!

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

No!

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

I am sure they still miss him in South Australia, Senator Fifield! And I am sure that Senator Feeney would not have countenanced the sort of tactics that went on in the 2010 state election. He nodded—I presume that is to say that he would not do things like that.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern and Remote Australia) Share this | Link to this | Hansard source

I reckon he would have!

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

He may have inspired those who did!

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

Order!

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

I think I was praising Senator Feeney then. But these are important issues; I would have thought we could have dealt with this here and now. It is unfortunate that the government will not take that view. But notwithstanding that, could Senator Feeney indicate on behalf of the government a time frame for this issue and broader issues of truth in advertising and electoral advertising being dealt with? Given the value and the role which the Greens have had in relation to this debate, I think it is important and that this is something that we need to deal with. Otherwise I think you will continue to see a greater degree of the disengagement, disenchantment and cyni­cism which the Australian public has with the electoral process, unless we clean these things up.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Thank you Senator Xenophon for those fine remarks concerning my electoral record in South Australia, not the least of which is, of course, the Labor Party's high standards for truth in advertising and proper respect for the electoral process.

Firstly, in the progress of this matter I am advised that pursuant to the government's arrangements with the Greens these matters are to be discussed and to reach finality by October of this year. From the government's perspective, the Special Minister of State for the Public Service and Integrity has carriage of these matters, obviously, and is charged with the task of negotiating these matters with the Greens with a view to those discussions concluding in October.

I might just also briefly respond to some of the remarks made by Senator Ludlam. In their contribution to the debate today the Greens raised a range of issues. My point would be that in the government's view none of those issues—while all virtuous of themselves—are advanced by the amendment proposed by Senator Xenophon. That, of course, is the critical point. Our view is that Senator Xenophon's amendment does not advance at all, in particular, as a matter of law. enator Xenophon's amend­ment merely repeats the current test found in section 329, which is a test which, as you said yourself in your remarks, has been read down by the courts so as to limit this to the actual fact of marking a ballot paper. Really, so long as that is the case, I do not think Senator Xenophon's amendment provides you with relief on those various questions that you highlighted in your remarks. So I guess, in that vein, the government continues to oppose these amendments, not least of all because they are of no practical effect.

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

I was provoked by Senator Feeney to respond—serves me right for praising him in the first place! To say that these amendments are of no practical effect is not right, and I think we need to correct the record in relation to that. These amendments are of practical effect in the context of the mischief that occurred at the 2010 South Australian state election, because what occurred there is something that could occur here at a federal level. You can have someone dressed up with a Family First T-shirt, Greens T-shirt, Labor T-shirt—

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

Or a Xenophon T-shirt!

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

Or a Xenophon T-shirt. It is one size fits all because I do not have the same budget as the major parties!

And you have a situation where you can give your first preference to a particular party but it then goes straight to a party or a candidate that it was not intended to on the official voting sheet for that party, on the ticket that has been lodged or in the preference arrangements that have been made. So it would deal with that mischief. I agree that there needs to be broader reform, but this is a particularly egregious and outrageous abuse where it seems that state and federal laws, at least in South Australia, cannot deal with it and our federal legislation is ambiguous, and this would have cleared that up. So, as much as I have a very high regard for Senator Feeney—and I do—I think that, in this case, to say that this would not be of any practical effect is simply wrong on the law. But I understand that this is something that will be the subject of a broader review, and I hope that we can deal with it substantively in the next few months.

Scott Ryan (Victoria, Liberal Party, Shadow Parliamentary Secretary for Small Business and Fair Competition) Share this | Link to this | Hansard source

I rise in this debate to raise a few other concerns. I understand Senator Xenophon's very legitimate concern about what happened with him in the last federal election. He has presented those matters to the Joint Standing Committee on Electoral Matters. I think he has a legitimate complaint about people trying to claim his title, his name and the first letter of his surname, which seems to be his particular brand.

But the concern that Senator Xenophon raises is—we do tend to come back to the conduct of the Labor Party over and over again in this—with respect to the 2010 state election in South Australia. This would not necessarily have stopped what happened at the polling booths, with people, effectively, representing themselves as aligned to Family First. The truth is that if it happens on polling day there is very little opportunity to stop it quickly.

Senator Xenophon interjecting—

I understand, but I do not necessarily think it stops the problem as it happens. There may be a penalty or a fine levied later on, but it does not actually stop the problem. There are pretty strong laws, for example, in Queensland, which were all exposed during the Shepherdson inquiry, about enrolling at the right place and not having a dozen people enrolled at one house. But the threat of imprisonment did not stop the misbehaviour. So I hasten to say that this does not necessarily prevent misbehaviour; it may actually seek to punish it.

But there is a bigger issue here: whether or not there should be a truth in advertising test in political debate. I am quite hesitant about this. I have seen this operate in other forums. I have seen this operate in voluntary organisations and non-government organisa­tions. I do not know if the Trade Practices Act 1974 is the best example for us to use on this. Senator Xenophon and I have had long discussions about the accessibility to smaller players of what was formerly known as the Trade Practices Act as well as competition law for them to enforce their legal rights. It is clear there are problems in that space. I do not know if that is the path we necessarily want to go down with political debate. I do not know if that is the test we want to apply, because it does not really help the smaller player.

There is actually a bigger issue: do we actually want to see an increasing legalisation of our political processes? A lot of the claims made in political advertising and political debate are contestable. Do we necessarily want a tribunal determining which particular claims are legitimate and which are not? I have said this before about issues of automatic enrolment. I think the AEC in Australia has a fine reputation. I do not want to see the AEC drawn further into political debate. If we say there is going to be any role for the AEC in determining truth in political advertising, the AEC will then lose some of its quite legitimate sheen as an independent agency that runs elections. Its conduct will then become the subject of political debate in the hottest environment possible: the midst of a federal election campaign. Quite frankly, that is not something that I think we should aspire for the AEC to do. The AEC is looked at around the world. Do we want to see our com­mission—I am not trying to necessarily paint this as the ultimate outcome, but it is a possible outcome—being looked at in the context of the way we might look at the conduct of some elections in other countries, where the agencies that run them are seen to be players in the debate, where the completely objective enforcement of the rules is not something that is alleged by one side or the other to be done unfairly? If we draw the AEC into ruling which claims are legitimate and which claims are not then I put to you that that is absolutely inevitable, and I do not think that is something we should aspire to.

Whether or not the Greens make a claim about a policy on climate change leading to the sea levels rising 50 meters in 10 years, whether or not the Labor Party makes a claim about the impact of Work Choices or whether we make a claim about the level of debt and its impact upon future Australians, I do not want those things to be determined legally. They are not questions that should be determined as if there is an absolute truth. Whether or not we used a question mark, a comma or an exclamation mark in the appropriate place, whether the footnote was big enough, the conduct of our elections will come down to legal technicalities and whether or not we have qualified a statement properly. Does anyone think we need political debate in this country to be more qualified, that we need to have fewer statements that are short, sharp and active?

The problem is that many of the statements we make in political campaigns are conclusions we have drawn from the evidence. The reason I sit in a different part of the chamber from where Senator Ludlam, Senator Xenophon and Senator Feeney sit is that we draw different conclusions from the evidence before us. That is political debate. So, on a philosophical or principled level, I think that we will be drawing the AEC in, potentially risking its reputation and trying to apply a legal test to a situation that we consciously give to the people to determine. If it came to referenda after these amendments were passed, Senator Xenophon, I think the situation would be even more risky, because if we go back through 100 years of debate over referenda and consider the effect of changing half a dozen words in the Constitution I venture to say that I, as a relatively well-known fed­eralist, would draw very different conclusions to the conclusions that other people in this chamber would draw.

Did anyone think in 1944, when we added a few words in the Constitution to deal with social security and benefits for students, that we would necessarily have said that in 60 or 70 years the Commonwealth will be the sole funder and regulator of universities in this country? Let us go back to 1944. I do not think we would then have been able to predict the future well enough to be able to say: 'There's no basis for you to make that allegation. There's no basis whatsoever for you to come to that conclusion. That's misleading people about the impact of this particular referendum.' Yet that is where we are today. I am not saying I would have made that prediction—I do not have that level of foresight on all things—but the point there is that that is something for the people to determine; it is not something for lawyers to determine and it is not something for the front pages of the newspapers of our country or for the television news to be leading with every night.

Do we really want our election campaigns to be accompanied by 'In the latest hearing before the AEC about the latest ad that the Labor Party or Liberal Party put up against one another, the finding has been as follows'? I say to you that I think they will if these amendments are passed. Senator Ludlam, I know the Greens have long campaigned on this, but I am a big fan of the bumper stickers that say 'A vote for the Greens is a vote for Labor'. Would you allege that that is misleading people? I know some Greens who have said to me, 'That's misleading.' I say it is not.

Senator Ludlam interjecting—

Are you going to seek to ban that from political debate? If it is misleading people and we have clauses such as this in the Electoral Act, what will happen is that those claims will be subject to some sort of adjudication by someone other than the people—that is, the people at the ballot box—whom we intend them to be subject to.

While I do understand that some who propose or support these amendments are motivated by the right reasons, I respectfully submit that they do not understand the consequences. The consequences will be in the conduct of political debate, which will lead to even more qualified language, more qualified statements and more jargon that our people can understand less than they can understand today's debate. Also, institutions which run our elections very effectively will potentially be drawn into political debate, and their reputations may be tarnished. So in a broader sense I think it is important to outline why there are some philosophical objections to the proposed amendments.

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

I will be brief. I think I must be doing something right, because both Senator Feeney from the government and Senator Ryan from the opposition have completely mischaracterised and misrepresented my amendments. Let us put this in perspective. These amendments relate to misleading conduct at polling booths where people get dressed up and say that they are representing Family First, another minor party or another Independent and then hand out how-to-vote cards when in fact they have nothing to do with the organisation. There were volunteers dressed up as Family First spruikers when in fact they were Labor Party stooges or volunteers.

Scott Ryan (Victoria, Liberal Party, Shadow Parliamentary Secretary for Small Business and Fair Competition) Share this | Link to this | Hansard source

It always comes back to the Labor Party. On that we agree with you, Senator Xenophon.

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

He agrees with me on that. There were also Liberals for Forests, as Senator Joyce points out. These amendments deal with that mischief. If passed, they would mean that, on polling day, somebody would not be able to dress up and try to hand you a how-to-vote card that said 'Put your Family First' or 'Vote Greens' or 'Liberals for Forests' or 'True blue Labor'. They would not be able to hand out a how-to-vote card for an organisation very different from the organisation that appeared to be represented.

I think that these amendments are quite narrow. They do not raise the broader philosophical issues that Senator Ryan was very much entitled to raise and that I think will be the subject of further debate. The numbers are not here, but let us make it clear that this amendment was quite narrowly focused to deal with the mischief that occurred at the 2010 South Australian state election when the Labor Party's campaign—which Senator Feeney had nothing to do with because he was the architect of the stunning 2006 campaign—

Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Link to this | Hansard source

He probably left some recommendations behind, though.

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

No, I accept that Senator Feeney—

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

He's a source of inspiration to many!

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

There you go—Senator Feeney is a source of inspiration on the coalition side as well, and I do not think he needs that inspiration either from the coalition. These are focused amendments to deal with a wrong that occurred in South Australia on the state election day in March 2010. I think the numbers are not here, but this is something that needs to be dealt with eventually. I do not think that the amendments will cause the problems that Senator Ryan is concerned about, because they are quite narrowly focused, but that is another debate—a debate about truth in advertising.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I do not propose to detain the chamber for long on this issue, but I do want to clarify one or two issues that were raised, particularly those raised by Senator Feeney. I acknowledge, though perhaps I did not do so strongly enough in my remarks, that I was deliberately providing some context for the views that I raised on Senator Xenophon's amendments. I quite freely acknowledge that the scope of these amendments is much narrower than the range of issues that I addressed, and I merely wanted to put on the record that this is something that we have long had a view on, not just because we have had many of these tactics deployed against us but also because they are in fact fundamental to the way that democratic debate is conducted in this country.

I apologise to Senator Xenophon for perhaps steering the conversation away from the direction in which his amendment intended it to go. I enjoyed Senator Ryan's contribution. I think that is precisely the kind of debate that we are trying to provoke here, and again I would raise the parallel with the way that we conduct debates and disputes in the trade practices realm. It is not currently lawful in this country—or, at least, it can be contested and disputed whether it is lawful—to lie and deliberately try to deceive people in commercial conduct. The matter of where we set the bar as to what constitutes decep­tive conduct is, I think, the interesting con­ver­sation, and the bumper sticker example is a perfect one. That kind of conversation is precisely what we are trying to provoke here, given the severe consequences of deceptive conduct which attempts to change the political future of the country when it is engaged in during election campaigns. I do not think it is appropriate at all that people should have no recourse whatsoever when they are casting their vote if conduct is being engaged in that is blatantly deceptive. enator Xenophon has raised a valuable point here. My comments were simply intended to broaden the debate and to remind senators that there is a great deal of unfinished business hanging over this chamber, includ­ing many of the issues that Senator Ryan raised, such as the independence and impartiality of the Electoral Commissioner as the umpire but particularly the fact that there is really no recourse—there is no backstop at the moment—for conduct engaged in on polling day or sustained, heavy advertising campaigns that are blatantly deceptive. At the moment, regrettably, it is people who shout the loudest who are able to potentially influence voting behaviour.

We are simply pointing to the fact that this is conduct that needs to be addressed, because it is not as though it is a one-off. In every election that I have been involved in over the last 11 or 12 years, there has been an example you can point to where somebody simply has not been playing fair. Not all of the examples that come to mind would be contestable or appealable under the kinds of mechanisms that we are contem­plating, but at least let us get something in place so that we can debate exactly how high that bar should be set.

Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Link to this | Hansard source

South Australia ) ( I would like to contribute to the discussion we are having here. I am inspired to do so, seeing that inspiration was taking hold in the chamber just before, to address some of the issues related to Senator Xenophon's specific amendment but also to address some of the broader issues that Senators Ludlam and Ryan have both so eloquently addressed. Senator Xenophon's amendment, as he has highlighted, follows from concerns related to the most recent South Australian election. That 2010 election saw some reprehensible conduct. Elections, sadly, do from time to time. In that instance the Labor Party in South Australia decided that dressing up as Family First volunteers and handing out how-to-vote cards pur­porting to be Family First how-to-vote cards that directed preferences in a manner—

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

No they didn't. That's outrageous. They did not purport to be Family First cards.

Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Link to this | Hansard source

They certainly did purport to be Family First how-to-vote cards. They were designed very much, Senator Conroy, to look like Family First how-to-vote cards. Michael Brown, the state secretary of the Labor Party, obviously was very inspired by the decision he made there. I do not know whether he was either Senator Conroy or Senator Feeney's candidate for the national secretary's position. I know Mr Brown was very hopeful of his chances there briefly, but, thankfully, those grubby tactics of the South Australian Labor Party were at least not deployed to the national office of the Labor Party on this occasion when you came around to choosing your own national secretary.

It was a very grubby act. We had the partners of Labor Party candidates dressed up in Family First T-shirts handing out how-to-vote cards.

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

No! Was it that blatant?

Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Link to this | Hansard source

It was that blatant, Senator Fifield. The partner of the member for Mawson, Mr Bignell, was there in her T-shirt purporting to be a Family First volunteer, handing out how-to-vote cards purporting to be from Family First but directing preferences in totally the opposite way to that which the actual Family First how-to-vote cards directed them.

So there was a serious issue at play here. It is an issue that has been canvassed by parliamentary committees in the previous federal parliament and, indeed, by the South Australian parliament but also by amend­ments to the act in this place already. We sought to tackle this issue of misleading how-to-vote cards. This, in the end, is the critical aspect here—that a how-to-vote card authorised by Mr Brown, the Labor Party state secretary, was directing preferences very clearly in a way that the party which it looked like they came from did not wish those preferences to go.

We have sought to address that here by making clear changes to the Electoral Act that ensure future how-to-vote cards must match up with those from the party of the authorising person. Those changes were passed prior to the federal election. Senator Xenophon obviously believes those changes did not go far enough, but I think it is important to note that the changes we made were what should be done in our very fair, robust electoral system in this country. That is where we identify problems. We should narrow in on the problem and try to solve that problem, not broaden it and create potential unforeseen implications by proposing far wider solutions.

That is the concern with the amendment that Senator Xenophon has proposed. Yes, he is right, in a sense, that this amendment is narrow at the point of application in that it relates to the point at which a vote is cast; but it is broad as to the potential arguments that could be mounted around it. The notion of misleading and deceptive conduct at the polling booth is potentially far, far broader than the instance in South Australia with the written material of a how-to-vote card, which we have attempted to rectify through other changes to the act.

I would argue that this amendment would have potentially far more sweeping implications than the changes which we have already made that sought to address the particular problem that was identified. Whilst the intention behind this amend­ment—the desire to knock out misleading and deceptive conduct at polling booths—is sound, the potential arguments that could occur around that are very broad indeed.

When we think about the many, many thousands of Australian volunteers—volunteers for the most part—who give their time on polling day to stand at polling booths to attempt to encourage people to exercise their vote in a certain way, in most instances it all occurs in a very friendly manner. In most instances, the volunteers get along quite well and some unique and strange friendships are forged. But, from time to time, people cross a line in the way they behave at those booths. But, in crossing the line, it is very hard to argue where that line is drawn. It is very hard to judge the throw­away comments someone may make or the discussion they may have with a voter as they are entering the polling booth. hese sorts of comments could all be captured by this amendment, and that is why it is, I think, a step too far in relation to tackling a particular problem—of misleading how-to-vote cards and misleading information given at the polling booth—that the parliament has already sought to tackle.

I will make some comments more broadly on Senator Ludlam's second issue, in relation to truth in conduct of elections, truth in advertising at elections and those general principles. There is probably very little I can add to the very sound arguments of my colleague Senator Ryan in this regard, but once again there seems to be a South Australian element or flavour that comes to this debate. Senator Ludlam has held up the truth-in-advertising standards of the South Australian electoral laws as a potential model for future debate in this place. Much as I would love, as a South Australian senator, to stand here and try to convince the Senate that the standard of conduct of elections in South Australia, the standard of debate during elections in South Australia, the quality of that debate and indeed the honesty and integrity in that debate are somehow greater than in federal elections or in any other state, I would, I fear, be guilty of misleading the Senate were I to make such claims.

Those laws have stood in South Australia for quite some time now. I have worked on numerous campaigns under them, and can I say they are little more than a pain in the proverbial for all to deal with rather than anything that actually promotes or delivers a higher standard of political debate or conduct. Unfortunately, though once again they were put in place with good intentions, the reality is that they have delivered very little. The examples that Senator Ryan highlighted and the issues that he highlighted of the Electoral Commission becoming the arbiter of what is fact, what is not fact, what is misleading, what is not misleading, what is deceptive and what is not deceptive are indeed exactly what happens under the South Australian provisions. My entire job in one election campaign, for the last two weeks of that campaign, was to write letters to the South Australian Electoral Commissioner either alleging misleading behaviour in Labor Party material or responding to Labor Party allegations of misleading behaviour in Liberal Party material. That was pretty much the sole thing I did for those two weeks: to draft for our state director the arguments that were put backwards and forwards.

A large number of those cases were not resolved until after voting day. In almost all of the cases, the arguments were dismissed because, of course, they were all largely politically motivated arguments put by the different parties, and in the end I think there have been but a handful of examples—and there are some examples, but they are but a handful—where parties have been required to undertake corrective action for statements they have made. But, even where they have been required to undertake that corrective action, frankly it has been of little con­sequence. Often the corrective action is masked in a way so as to look like yet another piece of party material, and the actual correction is a bit like the corrections you will sometimes see buried away in newspapers; nobody much notices the correction when it is compared against the initial misleading statement in the first place.

So I would say that in this broader debate we do risk the problems that Senator Ryan highlighted: that we set up independent electoral commissioners as arbiters of political debate. That is something that would be most undesirable in our system. Trying to write these laws and trying to create and instil these principles of truth of political conduct or political advertising is a fine and noble principle, but in practice I do not believe it makes a jot of difference in South Australia. I do not believe that it works there. I do not think that it has broadened or enhanced the standard of our democracy there, and I would be very reluctant to see us set up a similar system at the Commonwealth level that would simply promote the same types of arguments between the parties and see us undergo the same types of wasting of time and resources not just of the political parties but of the Electoral Commission, who would be cast in that role of arbitration. So I would urge caution on that broader issue.

If I can return to the particular issue of Senator Xenophon's amendment, in closing I again emphasise that the issue we are talking about here, I believe, was broadly dealt with or specifically dealt with in the amendments passed to the Electoral Act that looked at how-to-vote cards and the structure of those how-to-vote cards. If there are particular things we can do to those amendments to strengthen them, I personally am most open to looking at that and I would hope the coalition would be as well, but I think it is important that, where we tackle those issues, we tackle them with a narrow focus not just on where they are applied but also on where there can be room for argument. I think the amendment proposed by Senator Xenophon unfortunately leaves a very broad scope for argument and for potential incidents at polling booths that we would not seek to be covered to become points of argument. I think that would be an undesirable consequence of the amendment.

Question negatived.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.