Thursday, 10 May 2018
Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017; Second Reading
Labor in this place today supports the Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017. The bill introduces two offences into the Criminal Code Act 1995 and prohibits false representations that a person is a Commonwealth body or acting on behalf of a Commonwealth body. I note in this respect the comments of my own colleague, the shadow Attorney-General Mr Dreyfus in the other place, that this bill is a near mirror provision to those protections relating to impersonation of a Commonwealth officer. Together with the offences established, this bill outlines penalties of two years imprisonment for the primary offence and a maximum of five years for the aggravated offence.
Labor supports these protections in order to provide faith to the Australian people that the information distributed by Commonwealth agencies is from a genuine source and can be relied upon. It is vital for our Australian democracy that the system of democratic debate be not only be fair and balanced but also seen to be fair and balanced. The public's confidence in the political system and in political communication itself is a key tenet for maintaining a healthy democracy.
Earlier this year provisions that Labor supported have come into force, providing the Australian Electoral Commission a greater discretion over the authorisation of material. We trust the AEC as an impartial and independent body and indeed as the cornerstone of our democracy. We've always sought to improve disclosure, transparency and integrity surrounding our political system and therefore we're here today to support these reforms.
That being said, it is, however, disappointing that this bill has been introduced purely as a response to the prime ministerial dummy-spit on election night in 2016. No member or senator in this place should be fooled. We know that, following the Prime Minister's tantrum, which blamed everyone but himself, he sought to construct a conspiracy to explain the lacklustre election result back in 2016. So I feel for government ministers here and in the other place who've had to prosecute the argument that it was Labor's defence of health care and Medicare that cost the Prime Minister his sanity on that night in July 2016.
We remain concerned on this side that, in order to explain the outburst of the Prime Minister, the government has introduced legislation out of step with the recommendations of the Joint Standing Committee on Electoral Matters. We remain concerned as to the method and scale of the government's overreach in relation to such issues as this. However, here today I clearly say we support these provisions to satisfy not the government but the Australian people that there is at least one party in this place that will act in their interests alone. I commend the bill to the Senate.
I rise to speak on the Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017. As colleagues would know, this bill creates two new criminal offences. It imposes penalties of up to two years in prison for people who engage in conduct that results in, or is reasonably capable of resulting in, a false representation that the person is a Commonwealth body or is acting on behalf of or with the authority of the Commonwealth body. It also introduces an aggravated offence with a penalty of up to five years where a person falsely represents that the person is a Commonwealth body, acts on behalf of or with the authority of the Commonwealth body and with the intention of obtaining a gain causing a loss or influencing the exercise of a public duty or function.
This bill, at least in part, is borne out of government's anger about the so-called 'Mediscare' text messages from Labor during the 2016 election campaign. However, with typical artlessness, the Liberals are again trying to use this parliament to pursue their political opponents. Many of us remember Prime Minister Turnbull's absolute fury at those texts, expressed in his speech on election night in 2016, when he roared at his supporters, 'No doubt the police will investigate'. The matter was referred to the AFP, and no Commonwealth offences were identified. In their frustration, the government have come out wildly swinging a legislative sledgehammer trying to crack a tiny little walnut. The consequences of this bill are likely to be far further-reaching than criminalising text messages such as the so-called 'Mediscare' texts and similar acts.
The wild executive overreach of this bill introduced by the supposedly freedom-loving Liberal Party will unreasonably burden freedom of speech and freedom of expression in Australia. In particular, this bill has the potential to see political satirists imprisoned for up to five years for doing what they do best: making us laugh and making us think. The bill creates an exemption for conduct engaged in solely for genuine satirical, academic or artistic purposes, which leads to some very reasonable questions. What separates genuine satire from non-genuine satire? And what if a person's work achieves more than solely being satire? For example, what if it's also educational? This unclear drafting comes from a government which has undermined and attacked the arts every step of the way.
During a previous Senate estimates hearing I challenged then Attorney-General Brandis on the chilling effect this bill would have on satirists. What we learnt was that we cannot trust the protection of freedom of expression to a government that, firstly, obviously has no sense of humour and, secondly, has an extreme sensitivity to criticism. I presented the Attorney-General in estimates with a satirical and heavily modified Commonwealth coat of arms produced by The Juice Media in their video series Honest Government Adverts. The heads of the kangaroo and the emu on this heavily modified coat of arms had been replaced with surveillance cameras. Australian was spelt 'Australien'. And the words 'not the real logo' were even included in the graphic. I then asked the Attorney whether he thought that the logo would be considered genuine satire under the act. He responded, 'It's only clearly satire if you study it.' He also emphasised that the question of whether the logo was genuine satire or not would be 'a matter for the courts'.
The question is: is the Liberal Party so cavalier in sending satirists to the courts that it does not already acknowledge the ruthless way in which it treats those who challenge it? While it may seem far-fetched that the Liberals or a government agency may pursue a satirist because of their work, we know that this is already happening. Five days before this bill was produced to the parliament, Giordano Nanni, the producer of The Juice Media's Honest Government Adverts, received an email from the national symbols officer asking that 'The Juice Media productions do not use the Australian government logo, to avoid The Juice Media productions being mistaken for Australian government material'.
Where does this leave satire in Australia? Does it mean that figures such as Shaun Micallef, The Juice Media and The Chaser team, as well as upcoming comedians, will have to think twice before they crack jokes lest they find themselves on the stand or in the slammer? As the government's then Attorney-General put it, 'The test of what genuine satire is will be, as I said, up to the courts.' Australian common law has never previously had to deal with defining genuine satire, meaning that satirists will be in the dark as to the potential limits of their jokes until a body of common law has been established.
Put yourself in the shoes of a young comedian contemplating writing a skit where she impersonates the Department of Finance. She knows her jokes are funny, she knows they'll make people laugh, she knows they'll make people think and she knows her jokes are relevant to current events. If you were in her position and this law were in place, would you think twice about telling your jokes or performing your skit? If a public servant or this humourless government took offence to the skit, the comedian could be taken to the courts. Even if she were taken to the courts and her work was found to be genuine satire, she would have been dragged through the legal system. She would have had to pay for a legal team, give up her time and fear imprisonment all for the sake of her art and her work. If I were a comedian, I'd probably write a different skit, and this is what I mean by a chilling effect.
Make no mistake, the government knows exactly what it's doing here. The government last year moved to change and water down the protections against race based hate speech by changing section 18C of the Racial Discrimination Act, all under the false banner of freedom of speech. That is rampant hypocrisy. Of course, watering down 18C was about making it easier for people in Australia to be racists. That's what it was about. It had nothing to do with freedom of speech. This bill puts the lie to the government's claim to being the great defenders of freedom of speech in this parliament and this country. They are anything but. This legislation will have a chilling effect on freedom of speech. People will think twice before they engage in satire or art, and our cultural landscape will be significantly the poorer for it. As I said, to add to the outlandishness of this legislation, it's been dreamed up and introduced by the self-anointed freedom warriors of the Liberal Party.
There's another example I'd like to raise about the hypocrisy of the government claiming that they are warriors in the cause of freedom of speech. The evidence is this: the government's attempts to take charity status away from environmental NGOs, their clamping down on public servants' social media use and their weird, obsessive vendettas against figures such as the former President of the Australian Human Rights Commission, Professor Gillian Triggs. Those who crow the loudest about free speech in this place seem to be the first to call in the lawyers and threaten defamation suits against those who hold them to account. This bill makes one thing abundantly clear: the same government that fought so hard for your right to be a bigot is fighting hard against your right to crack a joke at its expense.
This bill is yet another in this government's ongoing campaign to chip away at human rights in this country and to clamp down on political dissent and civil society. It shows the great need that Australia has for a charter of rights. We are the only liberal democracy in the world that doesn't have a charter of rights, either on our statute books or in our Constitution. The rights and freedoms that our people currently enjoy are the result of wars, hard-won campaigns and community activism. Yet, since taking office, this government has been steadily eroding our rights, our liberties and our freedoms. We can see it in the metadata laws. We can see it in the disastrous Northern Territory intervention. We can see it in the degradation of the environment, through allowing projects like the Adani Carmichael mine to pollute our environment, destroy watertables and threaten the future of our farmers, and, of course, in the ongoing torture on Manus Island and Nauru of refugees and people seeking asylum. This government is made up of human rights criminals.
Without a charter of rights, it's simply too easy for the Liberals—unfortunately joined in this case by Labor—and the corporates to take our freedoms away and to trample on our rights and liberties. When bills like this come before parliament, it's a reminder to all of us that cherished rights such as the right to freedom of expression can be all too easily undermined by the Liberal Party—today, unfortunately and disappointingly, joined by the Labor Party on this bill—without the safeguards a charter of rights would represent. The Greens are committed to a charter of rights for Australia that will protect all Australians from the ongoing erosion of the rights that they enjoy.
While the Liberals may pretend that this bill intends to only outlaw acts such as the now infamous 'Mediscare' texts, it is clear that they welcome the ambiguity around the definition of 'satire' in this bill and the chilling effect it will have on satirists and comedians. Despite most submissions regarding this bill being critical of the wording 'genuine satire' for the very reasons I've outlined today, the government has not moved to amend the bill. It's a very fair and safe assumption to make that that is because they want outfits like The Juice Media and many others to think twice before they satirise this government. The chilling effect on free speech, and the significant impact on Australia's cultural landscape, that this bill will create is so detrimental that the Greens will strongly oppose it.
I want to make a brief contribution towards this debate on the Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017, as chairman of the Legal and Constitutional Affairs Legislation Committee, which conducted an inquiry into the bill. Most of the other speakers have gone through the bill in some detail, so I won't. I will say that the committee carefully considered the information provided by all of the submitters, to which Senator McKim referred—that is, that the proposed offence may violate Australia's human rights obligations; that it goes beyond its stated intention; that there may be unintended consequences, such as limiting freedom of speech and political satire; and that exemptions should be unambiguous. The committee carefully considered all of those submissions and the sorts of things Senator McKim spoke about. The committee weighed these concerns with the fact that the proposed offences almost mirror the current offences for impersonating a Commonwealth official, including the form in which the proposed exemption has been articulated.
Additionally, the committee notes—and this is very important—that the human rights committee, which looked into the bill, and the Standing Committee for the Scrutiny of Bills, which is a Labor majority committee, reported that they had no scrutiny or human rights concerns in relation to this amendment. Ultimately, the committee was of the view that the bill is both proportionate and necessary, and the committee was able to recommend that the bill be passed. I wish to, as chairman of the committee, thank the committee secretariat and, indeed, all of those who took the time to make a submission to the committee. The committee, obviously, supports the bill. I support the bill.