16 September 2019 Sally Woodward Committee Secretary Joint Standing Committee on Electoral Matters PO Box 6021 Parliament House Canberra ACT 2600 Inquiry into and report on all aspects of the conduct of the 2019 Federal Election and related matters Thank you for the opportunity to make a submission to this inquiry. As someone who follows Australian politics reasonably closely, the 2019 Federal Election (the Election) highlighted a number of areas in our federal electoral process that need review, including: 1. Misleading and deceptive conduct 2. Campaign advertising content 3. Political donations and campaign advertising expenditure 4. Campaign advertising black-out and how to vote information 5. Candidate eligibility 6. The role of the media 7. Australia’s electoral system 8. Engaging youth in politics 1 – Misleading and Deceptive Conduct The issue 1. The 2019 Federal Election was marred by widespread misleading and deceptive information designed to influence voters, votes and the outcome of the election. This conduct was undertaken or authorised by political parties and candidates (including incumbents), as well as third parties. 2. This misleading and deceptive information was disseminated on material including, without limitation, corflutes, signs, mail, letterboxed material, how to vote cards, print media, social media posts and social media advertising. 3. The Australian Electoral Commission (AEC) received approximately 500 complaints about election advertising. Of these 500 complaints, no matter how egregious the conduct appeared, only 87 cases were found to be unlawful and in breach of the narrow election laws. This meant the AEC was not in a position to act on the vast majority and when it could act, it only issued a warning, rather than directing immediate action such as ceasing to use, removing and/or deleting the material. 4. Examples of such conduct during the 2019 election include: i. Chinese language signs designed to resemble AEC material at polling stations in the electorates of Chisholm and Kooyong, telling voters “the correct voting method” was to put a “1” next to the Liberal candidate and then number the rest of the boxes from lowest to highest. The AEC found there was no breach of the Electoral Act (Cth) 1918 (the Electoral Act) as the signs contained the proper authorisation. Subsequently, it was unable to take action. o It is worth noting that these instances of misleading and deceptive conduct were referred to the Court of Disputed Returns. Both cases have now been referred to the Federal Court. ii. A string of false claims in election commentary and advertising, including that Labor would introduce a death tax. This was an outright lie and yet the AEC found it did not breach the Electoral Act so was unable to take action. iii. An unauthorised mass robocall by prominent businessman Mark Bouris telling voters not to vote Labor or their property values would fall. The AEC said this was a technical breach of the 1 Electoral Act. The AEC directly warned Bouris who undertook to stop the calls until they were properly authorised. iv. Fake how-to-vote Green candidate cards in the seat of Dickson that told Greens voters to direct their preferences to Peter Dutton. The AEC found there was no breach of the Electoral Act and took no action because the “flyer does not purport to be an official [how-to-vote] card” and contained an authorisation. 5. Considering the number and breadth of complaints received by the AEC, and its inability to act on the vast majority of those complaints, it is clear that the Electoral Act (Cth) 1918 is too constricted. To ensure elections are free and fair, and to help the AEC deliver efficient and high integrity electoral events, this needs to change. Comparative law and provisions in state and territory electoral acts Australian Consumer and Australian Corporate Law 6. The Australian public have protection from misleading and deceptive conduct under Australian consumer law and Australian corporate law. It is a significant gap that there is no prohibition on misleading and deceptive conduct in federal elections (or in government generally), by political parties, candidates and third parties, and by the media reporting and commenting on elections. 7. Consumers are protected from misleading and deceptive conduct: Competition and Consumer Act 2010 (Cth), Schedule 2 (Aus Consumer Law) Section 18 states “A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.” 8. Corporations are prohibited from misleading and deceptive conduct: Corporations Act 2001 (Cth) section 1041H states “A person must not, in this jurisdiction, engage in conduct, in relation to a financial product or a financial service that is misleading or deceptive or is likely to mislead or deceive.” Electoral Acts 9. While section 113(1) of the South Australian Electoral Act is the only provision currently in force that might be called a truth in political advertising provision, there are laws in every other Australian jurisdiction that make it an offence to mislead an elector in relation to the casting of his or her vote. Such laws are phrased slightly differently in the various jurisdictions, but all refer to statements in electoral matter. Resolution 10. It must be made illegal for political parties, candidates and third parties to misinform or deceive (deliberately or otherwise) the people of Australia in the casting of their vote. This is fraud and an issue of the utmost seriousness. 11. The Australian public should not be required, and often are not able, to determine whether election material is misleading and deceptive. It is imperative that voters can easily make a properly informed choice, without having to separate fiction from fact, on who would be their most appropriate representative in Parliament. Strengthening the AEC 12. Due to the constraints of the Electoral Act, the AEC does not have sufficient power to prohibit misleading and deceptive information, as is required to ensure a free and fair election. 13. The AEC must be given urgent powers to prevent this from occurring at the 2022 federal election and beyond. This should include, but not necessarily be limited to: i. Widening the scope of the Electoral Act to prohibit: o Political parties and candidates from engaging in conduct or commentary that misleads or deceives, or may mislead or deceive, an Australian voter(s) in the casting of his or her vote. o Prohibit political parties and candidates from publishing any form of advertising that misleads or deceives, or may mislead or deceive, an Australian voter(s) in the casting of his or her vote. o Journalists and media organisations from publishing information that misleads or deceives, or may mislead or deceive, an Australian voter(s) in the casting of his or her vote. 2 o Corporations and business from advertising or publishing information that misleads or deceives, or may mislead or deceive, an Australian voter(s) in the casting of his or her vote. ii. Strengthening the powers of the AEC, including: o Giving it the power to require that misleading and deceptive election material cease to be used and/or removed immediately. o Sufficient funding and resourcing to enact its new powers effectively. iii. Ensuring that individuals who are found to have breached these regulations are held to account, including an MPs removal from Parliament in serious cases. Greater accountability 14. If, while an election campaign is in progress, a candidate, political party, the media or other organisation is found to have misinformed or deceived voters, the AEC should issue a widespread public correction in the media, with the cost to be borne by the offender. 15. At the end of each election or by-election, the AEC should conduct a full review of all advertising during the campaign. All breaches by candidates and political parties should be reported to the Court of Disputed Returns. 16. The results of the AEC advertising review and any further investigation directed by the Court of Disputed Returns should be made public. 17. All breaches identified by the AEC should incur a significant penalty. Such penalties would need to be determined by the Senate, but should be commensurate with penalties for fraud or advantage by deception in other industries. 18. Further to the prohibition of misleading and deceptive behaviour during election campaigns, a ‘Truth in Government’ law is required, similar to the Competition and Consumer Act, and the Corporations Act, to ensure accountability for such behaviour during the term of Government. 2 – Campaign advertising content The issue 19. Election advertising in Australia is overwhelmingly about insulting and deriding other candidates. Most Australian citizens are sick and tired of these combative ads that bear no relevance to how a party would run the country if it were to win Government. Genuine policy discussion has gone missing in Australia and Australians have become disengaged with politics. 20. Further, with the rise of social media, it has become extremely easy for anyone to spread misleading and deceptive information at a rapid rate through a variety of platforms. It’s possible that the ‘victim’ won’t even know the information has been circulated. 21. Information can be ‘doctored’ to look like official advertising or it may be a meme designed to sew a particular seed of thought with just a glance. Once information like this is circulated it’s almost impossible to withdraw. 22. Management of social media during election campaigns is something that requires urgent attention. Resolution Regulation of advertising content 23. To return policy discussion to the fore, a ratio should be applied to advertising and commentary that requires candidates and parties discuss or advertise their own policies at least 70% of the time, with comment or advertising on the policies of other parties being restricted to no more than 30%.