Friday, July 20, 2018

Submission To Tasmanian Electoral Act Review

Initial submissions to the review of the Tasmanian Electoral Act close today.  The review was mainly prompted by issues raised (mostly during the state election, but also during previous state elections) concerning:

* authorisations for social media posts
* restrictions preventing naming candidates without their permission in certain kinds of material
* restrictions preventing newspaper coverage on election day
* lack of state-specific donation requirements
* issues with involvement of non-party actors in the electoral process (the call for submissions singles out unions, though in 2018 there was far more concern about gambling interests)


My submission as sent last night is uploaded here.  There is one typo that I may try to have corrected - the summary says Section 196 should be repealed when, as the text makes clear, I only propose repealing S 196 (1). (Whoops!)  I have given some issues a lot of thought over the years while others are just quick in-principle comments.  

While the state Liberal government does seem to have a fondness for "targeting" review processes to specific items of concern, I could not resist suggesting that any modernisation of the Act needs to address the much-too-high level of unintentional informal voting, as a result of the strict requirement that the numbers 1 to 5 each appear once only.  (Legislation is only part of the solution here given the high number of voters who invalidate their vote by trying to rank the candidates from 1 to n within each party column.)

It's timely to mention the issue of naming candidates without their consent.  In debate over the Braddon by-election and candidate Craig Garland's historic assault conviction (for which he received a suspended sentence and which definitely does not make him ineligible), it has been mentioned that Liberal candidate and former MP Brett Whiteley was also found guilty of breaking the law in 2002. That fact does rather pull the skids out from underneath Senator Eric Abetz's lawbreaker/lawmaker dichotomy that he seeks to apply to Craig Garland.  

Whiteley's offence, for which he pleaded guilty and was placed on a good behaviour bond without conviction, was to name a fellow Liberal candidate without their permission on a personal how-to-vote card that he circulated thousands of copies of, in which he tried to convince voters to rank the Liberals in a certain order.  

While there is an issue of whether those seeking public office should ever break the law at all (though partisans will always tend to excuse their own side's breaches) in my view the offence Whiteley pleaded guilty to shouldn't have been an offence at all.  If he wanted to tell people inclined to vote for him that he recommended putting candidates in a given order, why shouldn't he have been allowed to?  However, in any rush to abolish it in the name of free speech, we do need to be a bit careful.

My submission makes the point that other jurisdictions that do not have such laws often have detailed schemes of registration of how-to-vote cards that serve to deter the handing out of fake cards for a given party.  I suggest that if we are going to allow people to name candidates without their consent, we should ban material that misleads the elector concerning the authorship (not the same thing as authorisation!) or source of electoral material.  Current law bans material that misleads the elector in relation to the casting of their vote, but this tends to be interpreted very narrowly as pertaining to things like the formality of a vote, the date and times of voting, whether a person is allowed to vote or so on.  Its application to imposter material is unclear at best, and electoral authorities tend to interpret laws narrowly to avoid inserting themselves in the contest.

I may comment further when I have seen more submissions, but at this stage I am aware of one other submission, by Civil Liberties Australia.  Although CLA and I have somewhat different models we are broadly on the same page concerning the desirability of something approaching online real-time donation disclosure requirements, and with a much lower threshhold than at present.

Freedom Of Speech

Where I disagree with the CLA submission is in most of what it has to say about free speech.

Firstly I don't agree that the government needs to define free speech for the purposes of making "protecting freedom of speech" a governing principle.  The point of the principle in context is that some of the Tasmanian laws (for instance S 198(1)(b)(ii) concerning newspaper coverage on the day) restrict free speech in a way that has no intelligible modern purpose.

Secondly I don't agree that disclosure requirements impacting on donors and parties are fundamental to free speech or indeed have anything to do with it - which isn't to say they're unnecessary or undesirable.  My view is that free speech is fundamentally about whether speech is free (at least under the law); it is not about whether everyone knows everything that they would like to know.  The CLA submission leans on the International Covenant on Civil and Political Rights conception of freedom of expression, but the ICCPR's "freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers [etc]" does not entail that one is entitled to receive information from anyone or anything else who doesn't want to give it to you. It says freedom to impart, not requirement to.  The piece that the CLA cites in support of its view on this refers to the right of access to information held by public bodies.  Subjecting private bodies that take part in a public process to the same requirement is a good idea, but speech isn't any less free without it. If anything, a little bit the opposite, but justifiably.

Thirdly if a desired definition of free speech must be derived for the purposes of the inquiry then we could do better than pitting the High Court implied freedom model against the ICCPR model just because they are both versions supported by a legal framework.  For instance, if the former model is unsatisfactory because it doesn't always apply to state electoral law, what about a standard of applying the High Court model as if it always applied to state law?  

Fourth, while the CLA submission finds the ICCPR model to be more accessibly formatted and presented, I find its actual content to be as nebulous and vague as anything out of our High Court.  States can use the law to restrict speech that is considered detrimental to "morals" - which, morality being highly subjective, can mean pretty much anything.  States can also use the law to restrict speech where necessary for respect of "reputations".  However, this says nothing about how much protection of reputation is too much, especially where laws created for this purpose affect more than just reputational damage.  Exactly such a law is Section 196 (1), which prevents people naming candidates (in certain forms of communication but not others).  

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