Dr WOODRUFF (Franklin – Leader of the Greens) – The bill before us has been to this place and discussed on a number of occasions, this electoral amendment Bill and the Greens will be supporting this change to section 196 because we have long felt that it is constraining people’s rights to speak freely and make political statements in an election period and that the explosion of social media and the changes in communications that have occurred since the act first was written in 2004 means that there is wide disparity between the intentions of what was trying to be achieved in 2004 and the reality of political campaigning in 2024.
I will make some points that Ms O’Connor, our Justice spokesperson, has made at a previous time in 2022 when the Electoral Matters Miscellaneous Amendment Bill came to this place and we made a number of amendments. We introduced four amendments to that bill, one of which was to make the changes to or similar changes, changes in similar effect to Section 196 that are before us today and we’ve long advocated for its repeal on freedom of speech grounds and the inability to be able to use a candidate’s image or name without their permission during a campaign has led to many candidates in elections falling into hot water. Ms O’Connor as a member of the Greens, was one such person on two occasions, but I remember from our previous conversations in the chamber that other members piped up and said, oh, you know, you’re not. I think Ms Haddad said previously, all of us.
So many of us, many parties, many individuals have fallen foul of Section 196 over the time and Ms O’Connor provided the experience of when she was volunteering as a campaigner that the Save Ralph’s Bay campaign before the 2006 election and the community group had spoken to all the candidates for Franklin. They had their views on the Ralph’s Bay proposal and they put out a newsletter, not a Facebook post, but a good old fashioned paper newsletter with multiple candidates, images and names and she had a call from the Electoral Commissioner at the time, Bruce Taylor, which scared her sitting at home in the living room to think at South Arm that she had had a call from the electoral commissioner and that she had fallen foul of the law.
It had also been the case during the Legislative Council election for the seat of Huon that the Greens used Dr Bastian Seidel’s name in relation to his party’s – the Labor Party’s – position on electronic gaming machines, given that Dr Seidel was then a general practitioner in Huonville and he was campaigning, amongst other things, on the health and wellbeing of his constituents. The Facebook post put out by Pat Caruana, who was the Greens candidate for Huon, referred to Dr Seidel and the fact that he was standing for a party who had changed their election promise to Tasmanians and were supporting the Liberals was a matter that was ultimately the subject of a complaint made by the Labor Party to the Electoral Commission. The matter was then referred to the Director of Public Prosecutions for their consideration about whether it contravened the law.
Ms O’Connor sought some legal advice about the matter, and there were a couple of points worth reading in the legal advice that was provided by Roland Brown. He makes the obvious point that the post is a communication about political and government matters concerning candidates standing for a state electoral office in a pending election. It is the kind of communication that lies at the heart of the political communications that have long been recognised as essential elements of freedom of speech and democracy. It is also the kind of speech that lies at the heart of the constitutionally implied freedom of political communication.
The approach of the courts to protecting that freedom from legislative intrusion was stated by Gummow and Hayne JJ in Coleman v Power [2004]. Relevant to the context of section 196, Brown quotes their judgement in relation to another act:
First and foremost is the fact that section 7(1)(d) creates a criminal offence. The offence which it creates restricts freedom of speech. That freedom is not, and never has been, absolute, but in confining the limits of the freedom, a legislature must mark the boundary it sets with clarity. Fundamental common law rights are not to be eroded or curtailed, save by clear work.
He goes on to talk about the fact that the interpretation of section 196 in Tasmania has long been obscure, particularly as a result, especially in recent years, of rising social media communications. Publication by way of a Facebook post is not an advertisement, how‑to‑vote card, handbill, pamphlet, poster or notice under section 196, with the consequence that the post is not materially falling within the section.
The second point he made, which the Attorney-General has also made, is that section 196 is unique to Tasmania and there is no similar provision in the electoral legislation of the Commonwealth, New South Wales, Victoria, Queensland, South Australia, the Australian Capital Territory, the Northern Territory or Western Australia.
As it was, in relation to Ms O’Connor, the Director of Public Prosecutions ultimately confirmed that he would not be pressing charges against the Greens over that particular Facebook post during the Huon campaign. We make the point that, over the years, section 196 has consistently been used to prevent legitimate political discourse during election campaigns, and it was found to have been misapplied in that instance. We maintain that, over the years, it has had a chilling effect on the freedom of speech particularly among community groups that do not have the resources to take on a case and have been over‑assiduous in making sure they dampen down their comments or make no comments about the individual members’ names in an election campaign. By doing so, they are restricting the information about the political views and positions of different candidates standing for an election. We argue that that is not advancing our democracy.
Following the DPP’s decision, Electoral Commissioner Andrew Hawkey wrote to Ms O’Connor on 22 September 2020, saying that he understood the DPP would not be prosecuting the matter. In light of the process and the advice the Electoral Commissioner received from the DPP, he made a number of points which are relevant. Mr Hawkey said:
The Electoral Act 2004 became law before the development of social media and the use of social media for electoral and election discourse. While the act includes the definition, ‘publish means published by any means, including by publication on the internet’, section 1961 was written to primarily refer to physical actions of printing, publishing and distributing with physical items, advertisement, how-to-vote card, handbill, pamphlet, poster or notice. The act does not establish any similar restrictions on the use of a candidate’s name in a political speech, personal conversation or on talk-back radio.
The relatively recent rise of social media appears to fall between the historical discourse of delivered material and verbal, social, personal communication. It may be arguable the Facebook post is political discourse that could be considered closer to a radio interview or public debate than a handbill, how-to-vote card or notice.
Mr Hawkey concludes by saying:
A breach of section 196 is a criminal offence which has severe consequences, that is, a fine not exceeding 300 penalty units or imprisonment for a term not exceeding 12 months, or both. A wide interpretation of the term ‘notice’ –
The ‘term of imprisonment’, I think he means:
– to include such comments could be seen as seriously infringing freedom of speech and political communications.
The Electoral Commissioner did recognise the potential chilling effect of section 196.
He concludes by saying he has an important role to encourage and enforce compliance with all electoral laws and review and respond to breaches:
I will continue to ask individuals to refrain from actions that could possibly breach section 196. I am 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.
It is clear the Electoral Commissioner has an appetite for the clarity this amendment provides so that people can go about their business of honestly campaigning and representing the views of other candidates; honestly, as community groups, reflecting the diversity of views of candidates, particularly the ones that align with the areas their groups are trying to prosecute or achieve, and fairly criticising candidates who have views that do not seek to achieve what individuals, community groups or organisations are trying to get as an outcome on the election.
That is what a robust democracy looks like. It looks like people having conversations. I think of a Facebook post, and I think most people would agree, as being a bit like being in a public town hall meeting. The point is about whether the comments that are made are true, whether they are not misleading about the words or the intention a person has, or a position that they have prosecuted. They are separate matters.
We have long campaigned for the change and are pleased that is finally going through – I mean, it has been through, but we hope will conclude. We thank the minister for bringing it on.
What we have remaining is how‑to-vote cards. Minister, can you confirm that there will be no problem for people who would be doing what many community groups now do, which is to present views in an election campaign and how they line up with their interests, for example, in tick‑a‑box lists ranking them? I understand the change before us today would mean that form of communication, like other communications that mention a candidate’s name, would be a valid form of communication and would not fall foul of the law any more. Therefore, people would be able to rest themselves at the next election, whenever that may be, and feel comfortable reflecting the views they have heard from candidates, and not being charged for doing so.
I give my thanks to our Electoral Commissioner, Andrew Hawkey, for his professionalism and integrity, for the team he leads, and the work they do. They are an essential guardian of our democratic processes in elections in Tasmania and we are lucky to have their hard work, perseverance, good humour and thorough decency in the work they do. It is always a pleasure engaging with them. All of us in this place understand that we are here as a result of an impeccable process of election management and counting, and rigour that stands us in stark contrast to many other countries around the world with democracies that are in a parlous state.
