Saturday, September 19, 2020

Tasmanian Electoral Reform and A Current Electoral Amendment Bill

There has been much discussion of the progress, or lack thereof, of electoral reform in Tasmania in recent weeks.  Most of this discussion has focused on donation law reform issues including disclosure requirements, possible donation caps and potentially public spending. These matters were addressed in the Electoral Act Reform Report, which was reportedly completed in December 2019 but remains unreleased.  Premier Gutwein has stated that the progress on electoral reform is not a priority for the government at the moment because it is occupied with coronavirus-related challenges.  

There is still (barring an early election, regarding which speculation has declined) plenty of time for reforms to House of Assembly donations processes to be passed prior to an expected March 2022 election, should the parliament choose to do so.  (My broad view is that donation reform before that election - to increase both the range and timeliness of required disclosures - would be extremely desirable as the current requirements are far too lax, but that spending caps require very careful consideration to avoid the errors of a previous attempt.)

However, the issues being addressed in the current reform process (at least I will assume it's still a thing and is just stalled for the time being) include other matters in the Tasmanian Electoral Act that affect elections for both houses, and that could affect the Legislative Council elections scheduled for May 2021.  These include the Section 191 authorisation requirements for material displayed on the internet (including social media) and also the Section 196 bans on naming candidates in some kinds of material without their consent.

Bringing the latter issue into focus, the Greens have been informed that the Director of Public Prosecutions does not intend to charge them with an alleged breach of Section 196 that arose during the recent Huon Legislative Council contest.  I have not seen any further detail regarding this.  The issue was covered in some detail in my Huon guide in the Campaign section.  The Greens had made a Facebook post including a video that encouraged voters to vote for their candidate and tried to wedge Labor candidate Bastian Seidel (by name) over Labor's post-2018-election backdown on poker machines.  (The wedge attempt failed; Seidel won spectacularly.)  

While I am also unconvinced that Section 196 was breached, I also understand Labor's action in making a complaint about it.  It is difficult for parties to campaign when the meaning of legislation is unclear and where opponents are using tactics that the party itself may prefer not to use out of fear that they may be breaking the law.

Section 196

Section 196 holds that:

(1)  A person must not between the issue of the writ for an election and the close of poll at that election print, publish or distribute any advertisement, "how to vote" card, handbill, pamphlet, poster or notice which contains the name, photograph or a likeness of a candidate or intending candidate at that election without the written consent of the candidate.

Penalty:  Fine not exceeding 300 penalty units or imprisonment for a term not exceeding 12 months, or both.

Issues with Section 196 include:

1. Its application to the internet is unclear.  There is a view that it does not apply to the internet at all because it predates the existence of the internet, and elsewhere in the Act clauses have been added to apply to the internet.

2. Even if it applies to the internet, it is vague.  It's generally reasonably obvious what an "advertisement" or a "notice" are when they are paper items, either free-standing or published in a newspaper.  But is a person posting an unpaid comment or other content online supporting a particular candidate posting an "advertisement", and is it a "notice" if it does not advertise any specific event, but just describes a point of view?

3. It's an unnecessary restriction on free speech.  It is not clear why people should be completely banned from commenting on other candidates by name or using photos of opponents.  Such restrictions don't exist in federal electoral law.  The law does have the effect of minimising use of how-to-vote cards, including by candidates involved in intra-party contests, but such cards would have almost no effect anyway, given that canvassing within 100 metres of polling booths and advertising on polling day are both banned.

4. It is likely to be unconstitutional in some cases. This is not as clear as many opponents of the section make out, because the implied freedom of communication on political matters in Australia applies only to free speech on matters relevant to voter choice at federal elections.  However, there's scope for the latter to include some things said during a state campaign.  See Anne Twomey here.  There has been at least one case of a purely state-related electoral restriction being found not to breach implied freedom.

Ogilvie's Proposals

Independent Madeleine Ogilvie has introduced an Electoral Amendment (Digital Communications) Bill which has passed the first reading stage, as almost all bills do.  However as a private members' bill I would expect it to now stay on the back burner unless there is ever any will in government to bring it forward for debate.  

Regarding Section 196 Ogilvie's proposal is to expand it to include "Digital Communications", which are defined as " a communication utilising a carriage service provider, internet carriage service, broadcasting service, any other content service or datacasting service." (It seems this definition would apply to some audio communications that might not be necessarily "digital" in nature.)

My comments: while this would clarify Section 196 to some degree, it would not remove the unclarity about what is a "poster" or an "advertisement".  It would also expand the range of material that Section 196 clearly refers to, but I think this is moving in the wrong direction and that the pressing need with Section 196 is actually to get rid of it. My view is that Section 196 should be abolished, but that Section 197 (electoral matter that misleads the voter in relation to the casting of their vote) should be expended to include electoral matter that misleads the voter concerning its authorship or source.  This would catch how to vote cards that purport to benefit one party but actually benefit another, which might otherwise be legal. 

Regarding Section 197, Ogilvie's proposal is to expand it to include Voice Calls, defined as " a voice call, the content of which consists wholly of a spoken conversation between individuals, or a call the content of which includes a recorded voice."

My comments: while I am unsure about whether the definition above captures too much (it sounds like it could include even a private phone call) I think the idea of adding robocalls to the list of ways in which someone cannot mislead voters as to the casting of their votes closes a loophole and is a good idea.  

While I am doubtful whether these proposals will actually go anywhere, I think it is worth commenting on them anyway.  My hope is that there will be progress on those sections affecting Legislative Council elections prior to May 2021, or failing that, at least in time for the 2022 lower house and Legislative Council elections.  

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