Ms O’CONNOR (Hobart) – Mr President, the Greens maintain our strong support for the repeal of Section 196 of the Electoral Act 2004. It has been a really interesting debate so far, and as it is every day here. Every day is a school day. I have learned things and perspectives which are interesting and informative. Ultimately, what we should be talking about here is what provides the greatest benefit to democracy – the free and fair exchange of ideas during an election campaign; how we can make sure Tasmanians, in our case, are best informed about the positions of people who are running for public office. There is no question that section 196 as it is drafted causes problems for the Tasmanian Electoral Commission in its interpretation – and I will get to that shortly – but it does have a chilling effect on the exercise of free speech and the free exchange of ideas during an election campaign.
In the briefing this morning I relayed an anecdote of our time in a community group, Save Ralphs Bay Incorporated, who worked very hard as a community to protect the Ralphs Bay conservation area and sand flats and all the beautiful birds down there from a Gold Coast‑style canal estate. One of the things we regularly did was produce a newsletter that we walked out into the community everywhere south of Rokeby, basically. In the 2006 election campaign, when the Liberal Party had taken a position of opposing the Project of State Significance that would be legislated to allow for the assessment of the canal estate, I had a position of opposing. Labor was rabidly supportive of the canal estate under then‑premier Paul Lennon.
We put out a newsletter to locals that listed the candidates and their positions on the canal estate. Then I got a call from Bruce Taylor, the then‑electoral commissioner, basically saying that we were – and that I would take responsibility for it, ultimately – in breach of section 196 of the Electoral Act. He said it was problematic because we had not received the permission of candidates to publish their names in a newsletter, which was regarded as an advertisement for the purposes of the act. You can imagine how a little community group, which is just desperately working to try to save a place for nature and for the birds, would feel when a call comes in from the electoral commissioner that the editor of that newsletter may have committed a criminal offence and face up to 12 months’ imprisonment – which is what section 196 does. It had a chilling effect on our community group.
The second example of my collision with section 196 was during the Legislative Council periodic elections in 2020, when then‑member for Huon, the predecessor to Mr Harriss, was running for the seat of Huon. I did a short Facebook post with Pat Caruana, who was our candidate, and it very simply stated a position that was taken by the then‑state Labor party. The question was asked in the Facebook post, which was no more than 60 seconds long: ‘What is Dr Seidel’s position on pokies, given that he knows what the harms are? Will he tell voters where he stands on this issue?’ That is unarguably fair political comment posted on Facebook. Not an advertisement, not a ‘how to vote’ card. However, I did say Dr Seidel’s name. I identified him, and I had not asked him.
Now, I ask members who have made a contribution, whether you think that it is reasonable that a candidate in an election campaign – whether it be a state election or Legislative Council elections, should have those special protections where you cannot even say their name or raise a question of policy. I did not say Dr Seidel is a bad guy. I did not say he was dishonest.
Ms Rattray – You could not have done because we want not any of those.
Ms O’CONNOR – I know. I understand that well. I am also a massive fan of truth in political advertising, truth in political commentary. I just told the truth. Pat Caruana, who was our candidate then, made some observations that were not highly political in nature. Anyway, next thing you know, a call comes in from the Electoral Commission asking that I remove that post from my Facebook page. I decided not to because I thought it was ridiculous and I thought, on advice, that it was worth testing. In response to the member for Launceston’s comments about independents not being able to afford legal advice, I paid for my own legal advice because it was a point worth taking up and making and because I felt that, as did my advising lawyer, Roland Browne, that to be asked by a state Electoral Commission to take down fair political comment during a campaign was not only not reasonable, but in all likelihood in breach of the implied right to freedom of political communication that is in the constitution.
There was a face off then because a decision had to be made by the Tasmanian Electoral Commission whether to refer me to the Director of Public Prosecutions. These are serious consequences that a person – so just make me a person for a moment, just an ordinary person ‑ very serious consequences that a person faces should they make reasonable political comment during a campaign about another candidate. This comes back to a threshold issue here.
Section 196 of the Electoral Act provides a special protection to political candidates, as the member for Rumney pointed out, that is not afforded to anyone else in our society. Ultimately, through one interpretation, it is a protection from legitimate political criticism and we should not be countenancing that. Why would we accept it is reasonable for us as a class of people to have more protections under the law than the people we represent?
It does not pass the pub test and I totally hear what the member for Murchison was saying about the gendered nature of attacks on people in public life. I totally hear it, but this legislation is not the place to deal with that. There is a whole body of engagement, educative work and positive affirmative work in our community dealing with gender inequality, attitudes towards women and girls, basically from birth that will help or should help to improve gender equality and improve attitudes towards women and girls, but that cannot and should not be the lens through which we view this amendment bill.
As to why are we not looking at every other aspect of electoral reform, pardon my cynicism, but the Greens have been working towards electoral reform pretty much ever since we were born as a party. If we were to wait for that golden day when the best, most complete package of electoral amendments comes forward altogether as a cohesive and agreed whole – we will be waiting forever, because it is not going to happen.
It is not going to happen. There is limited appetite amongst the major parties here for donations reform, for example, for restrictions on donations from corporations, private developers, foreign interests and the like. If something has been identified as problematic in our electoral law framework – as this has, by the Tasmanian Law Reform Institute and the body that has to oversee it and deal with the issues, the Tasmanian Electoral Commission – then I think we have a responsibility to address it.
Back to the Seidel situation, just briefly. We ended up seeking some further advice from Ron Merkel KC because the consequences were very significant. A letter was presented to the DPP on my behalf that was informed by advice from Ron Merkel KC through Roland Browne.
The member for Murchison talked about the High Court case, Coleman v Power 2004, and it has a really key statement in it, in relation to if a state is to enact any legislation that potentially restricts freedom of speech, then it has to be very narrowly limited. In Coleman v Power, in the judgment:
Once it is recognised that fundamental rights are not to be cut down save by clear words, it follows that the curtailment of free speech by legislation directed to proscribing particular kinds of utterances in public will often be read as ‘narrowly limited’.
The problem with the interpretation and application of section 196 is that it has not just been limited to an advertisement, for example, a prohibition on a misleading advertisement. It has actually been applied to cover all electoral commentary, which is what the Bastian Seidel situation demonstrated.
As this correspondence to the DPP said:
A Facebook post identifying another candidate in their policies, without more, is not an advertisement, how to vote card, hand bill, pamphlet, poster or notice.
Section 196 is not concerned and nor should it be concerned with the publication of electoral matter, the seminal but much broader concept in the act. If parliament had wanted to ban publication in any form of something which identifies a person, parliament simply would have drafted section 196 like this: 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 electoral matter which contains the name, photograph or a likeness, etcetera.
I do not think we should continue a situation where, during an election campaign, people feel that they might be captured by this provision and face up to 12 months jail, simply because they have made political commentary on a Facebook page where they disagree with a candidate or strongly challenge their views. They might face up to 12 months in jail.
We know there are some really vile people out there. I am not talking about that particular very small demographic in our communities, little misogynist keyboard warriors who invariably will attack women, I am talking about the broader community here and the chilling effect that section 196 can have on the free and fair exchange of ideas during a campaign. The letter goes –
Sitting suspended from 4 p.m. to 4.30 p.m.
Resumed from above.
Ms O’CONNOR (Hobart) – Mr. President, I was thinking about it over the afternoon tea break. At its core, section 196 is undemocratic. We should acknowledge that because it does have a potentially very restricting capacity on the free flow of speech. As legislators, I believe we should be doing everything we can to strengthen the foundations of our democracy. I do not believe we should accept our laws or clauses in laws that provide special protections for us in the event of an election. We need to be realistic that the provisions of section 196 apply relatively infrequently.
Once every three or four years for a month during a state election campaign and each year during the periodic Legislative Council campaigns. If we take the state election as an example, you have four weeks within – in a normal period – a four-year period where section 196 applies. For the whole rest of that time our images, names and reputations can be distorted, manipulated and trashed.
Why do we think it is reasonable to keep section section196 given its limited application? I know that what we are talking about here is amending section 196 to clarify it, but why would we accept a provision which stifles free speech, although it has not been tested, in all likelihood unconstitutional, and which treats us as a separate class of people under the law? I do not believe that is reasonable.
If you look back at the history of where section 196 came from, as I understand it, it first arrived in a 1907 electoral act of the parliament and then it was 1907 and then 1905, and then it made its way into the 2004 act we are seeking to amend today. I understand the arguments about ‘well, maybe this arcane provision has come back to be relevant and modern and therefore potentially Tasmania could be a leader here’. I am not exactly sure a leader at what, because the protection to a particular class of people – political candidates – only applies for the campaign period.
We are talking about a provision in law that is more than 100 years old, which the Tasmanian Electoral Commission itself has asked to be amended, which the Tasmanian Law Reform Institute has recommended reforming, which psephologists like Kevin Bonham, for example, passionately advocate for reforming. These are people who are, particularly for the TEC and Kevin Bonham, deep in the electoral process.
What has happened and the Bastian Seidel situation shows that section 196, as it is currently used, has been read to extend to cover any comment on political matters that is published. It does not have to be an advertisement or a how to vote card. Any comment on a political matter is potentially captured here. If we go on the advice on the implied freedom ‑ I know other members want to talk but I want to read this in.
The question we asked the DPP at that time in our submission was how can there realistically be a free exchange of political ideas in an election if a person is prohibited from discussing the policies of another candidate or intending candidate if they cannot identify that very candidate or intending candidate?
The High Court has reiterated on numerous occasions that the Commonwealth Constitution prohibits legislative interference with the freedom to discuss matters such as the suitability of a candidate for public office or a person holding public office. Nationwide News v Wills 1992 was a case about whether a provision of the Industrial Relations Act 1988, a Commonwealth Act, was invalid as it made it an offence through writing or speech to use words calculated to bring a member of the Industrial Relations Commission into disrepute. The High Court ruled the provision to be invalid as it was inconsistent with the implied freedom and Justice Brennan said at the time:
To sustain a representative democracy embodying the principles prescribed by the Constitution, freedom of public discussion of political and economic matters is essential … it would be a parody of democracy to confer on the people a power to choose their parliament but to deny the freedom of public discussion from which the people derive their political judgments.
His Honour went on to say:
By parity of reasoning, the representative democracy ordained by our Constitution carries with it a comparable freedom for the Australian people and that freedom circumscribes the legislative powers conferred on the Parliament by the Constitution. No law of the Commonwealth can restrict the freedom of the Australian people to discuss governments and political matters unless the law is enacted to fulfil a legitimate purpose and the restriction is appropriate and adapted to the fulfilment of that purpose.
The Constitution prohibits any legislative or executive infringement of the freedom to discuss governments and governmental institutions and political matters except to the extent necessary to protect other legitimate interests and, in any event, not to an extent which substantially impairs the capacity of, or opportunity for, the Australian people to form the political judgments required for the exercise of their constitutional functions.
I understand there is a mood not to support this amendment bill, I was obviously not here late last year when the reform of section 196 was previously prevented.
We have now had a year in public life, in this Council or the Assembly – and the Assembly has passed this – to think about this issue knowing that it would come back. The government made it a policy announcement during the campaign. We have had a lot of time as a Council to consider this matter and I know it has come on today in part because of a change to the order of business which was agreed by the House. It feels a little bit rushed even though this bill has been sitting in our bills trays for some months. We have had time to consider this issue. We have before us a request from the Tasmanian Electoral Commission, which has to deal with the mess that section 196, as it is written and interpreted, presents to them. After all the kerfuffle, we ended up with a letter from the DPP on 15 September 2020:
Mr Brown,
Thank you for your letter of 26 August 2020 and your helpful submission on the question of whether your client, Ms O’Connor, had breached section 196 of the Electoral Act 2004. Please be advised I do not intend to charge your client with breaching the act.
Well, that was an almighty relief.
A week after that, I received a letter from Mr Andrew Hawkey saying that they had been advised by the DPP that there was no reasonable prospect of conviction and he would not prosecute the matter. However, Mr Hawkey noted the following things:
The Electoral Act became law before the development of social media and the use of social media for electoral and election discourse.
I truly do feel that is part of the reason it has become even messier in recent years.
The relatively recent rise of social media appears to fall between the historical discourse of delivered material and verbal/social/personal communications. It may be arguable that your Facebook post is political discourse that could be considered closer to a radio interview or public debate than a handbill or how to vote card or notice.
I was reminded that a breach of section 196 is a criminal offence with severe consequences and a potential imprisonment term of up to 12 months.
As the Electoral Commissioner, I have an important role to encourage and enforce compliance with all electoral laws and to review and respond to possible breaches. Therefore, I’ll continue to ask individuals to refrain from actions that could be possible breaches of section 196 of the act. I’m currently of the view that some publications on social media, including those in the nature of the Facebook post in question, are not likely to present a sufficiently compelling case to seek the commencement of criminal prosecution.
I thank the Electoral Commission, Mr Hawkey particularly, over the course of that journey and that incident ‑ it was a few months ‑ hours and hours of the Tasmanian Electoral Commission’s time were put into responding to a complaint that was made by a member of the community, undoubtedly a member of the Labor Party or a Labor Party volunteer. The TEC had to deal with that complaint and the process took months. A waste of time and a waste of money in an attempt to apply an interpretation of section 196 that you would have trouble convincing yourself the original drafters thought that provision should apply to all political commentary or speech during a campaign.
If you look back through the rationale of this clause in the three bits of legislation, it does seem clear that the original intention was to prevent false or misleading information in advertising material about another candidate without their permission during the campaign. Where we have got to now is that section 196 has a chilling effect on communities and free speech. It potentially restricts the free flow of dialogue and discussion of policy ideas during an election campaign to the detriment of our democracy. As I was saying earlier, the TEC itself has asked for an amendment and we should respect that they have to administer it.
I have a feeling about how a number of members will vote on this, particularly given the history of this bill in this place, but it is well overdue for change because what we would be doing if we accepted this amendment is this, we would have a clause that says:
a person must not, between the issue of the writ for an election and the close of poll at that election (insert amendment), print, publish, distribute or keep on display a “how to vote card” which contains the name, photograph or a likeness of a candidate or intending candidate at that election without the written consent of the candidate.
That is a very reasonable clause to have in an electoral act.
In closing, I will say this: when we make a decision to run for office and for people who step up to be candidates, that takes some courage, but we do so knowing that you if stick your head above the parapet, someone will kick it. Someone will. That is the nature of political life. Not necessarily public life, but political life. It does not make it fair or reasonable, but as my mother always said to me, life is not fair. It is not.
So, we are in here because we made a choice and a decision to step up to represent our communities. We should be prepared in an election campaign to deal with reasonable criticism. We should not have to deal with, of course, the kind of awful treatment that recent candidates have and others of us, particularly women, have. In a democracy you kind of have to wear the slings and arrows, Mr President, because the effect of section 196 right now is that only comments that say nice things or positive things about a candidate are likely to get through that test or, certainly, if you want the candidate’s permission to identify them by name or photo, you will only get that if you are going to say something nice about them. That is not how democracy rolls.
We are in this business, and all of us here today, in a contest of ideas and values and that is roughly 80 per cent to 85 per cent of issues on which we can all largely agree, which is always very heartening, but in here we should be looking after democracy. We should be looking after freedom of speech, exercised responsibly, yes, but also the free and fair flow of ideas about politics and policy and their implications for our island and its people. That has to be something we celebrate and strengthen in an election campaign.
I strongly support this amendment bill.
