tag:blogger.com,1999:blog-4052593945054595675.post5059689055139948161..comments2024-03-28T14:16:10.498+11:00Comments on Dr Kevin Bonham: Will "Hate Speech" Be Illegal In The "Plebiscite"?Kevin Bonhamhttp://www.blogger.com/profile/06845545257440242894noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-4052593945054595675.post-6875324972912695452017-08-12T22:16:43.843+10:002017-08-12T22:16:43.843+10:00Comment by Michael Maley:
------------------------...Comment by Michael Maley:<br />-------------------------<br /><br />The issue of legislating to require truth in electoral advertising has been an ongoing one ever since the High Court’s ruling in the leading case of Evans v. Crichton-Browne [1981] HCA 14. A provision of this type was inserted in the Commonwealth Electoral Act 1918 by the Commonwealth Electoral Legislation Amendment Act 1983, but following a further inquiry by the Joint Select Committee on Electoral Reform (see report at http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=reports/1984/1984_pp198.pdf), was deleted immediately before the 1984 election by the Electoral and Referendum Amendment Act 1984. The inquiry in question and associated report dealt with the fundamental issues in considerable depth.<br /><br />One point of history is worth noting: the idea of regulating truth in advertising was not new even in the 1980s. L F Fitzhardinge, in the second volume of his biography of William Morris Hughes, noted that the latter had, in the run up to the second conscription referendum in 1917, promulgated:<br /><br />“a new regulation making it an offence to publish false statements intended to mislead the voters, a regulation which clearly left a wide discretion to the censors”.<br /><br />That regulation in fact formed the basis for the 1983 amendment. (I know this because I prepared the 1983 amendment drafting instructions.)<br /><br />A broader question you only touch on is the basis of constitutional power for the Commonwealth to legislate in relation to the plebisurvey. There’s no doubt that the Commonwealth has power to regulate federal election campaigning, as campaigns have long been seen as an integral part of elections. But it seems to me that there’s a real potential issue about whether the power to make laws regarding “census and statistics” would include a power to regulate political discourse surrounding an issue of opinion on which statistics are supposedly being gathered, since “campaigning” has never in the past been seen as part of the process of statistics gathering. While the Racial Discrimination Act contains valid anti-vilification provisions, the legislative power relied on to support that Act was the external affairs power, linked to Australia’s ratification of the Convention on the Elimination of All Forms of Racial Discrimination; and unless Australia has ratified something similar in relation to sexual preference, it’s hard to see the external affairs power coming into play. And of course, always ticking away in the background is the implied freedom of political communication.<br /><br />All in all, it seems pretty likely that anything other than minimalist legislation would wind up in the High Court very quickly.Kevin Bonhamhttps://www.blogger.com/profile/06845545257440242894noreply@blogger.com