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What law reform is needed to strengthen Australia’s elections?
The Human Rights Law Centre (HRLC) and Marque Lawyers have advocated for reforms aimed at making elections fairer and Australia’s democracy stronger, as hearings get underway into the most recent federal election.
Jess Feyder
The joint standing committee on electoral matters (committee) held its first day of hearings from civil society organisations into the review of the 2022 federal election.
The HRLC appeared before the committee and made 25 recommendations, covering:
- Reforms to reduce the influence of harmful industries in Australian politics, including making political donations more transparent and capping election spending;
- Prohibiting inaccurate or misleading electoral matter; and
- Removing barriers to voting for different communities, including for Aboriginal and Torres Strait Islander people living on homelands, people with disability, people in prison, people aged 16 and 17, and permanent residents and New Zealand citizens residing long term in Australia.
“This committee has a strong mandate to recommend ambitious reforms that will secure a more robust democracy for generations to come,” she stated.
“We urgently need limits on election spending and laws to prohibit candidates from misleading voters, to ensure election debates are balanced and fair.
“The government must ensure Aboriginal and Torres Strait Islander people on homelands can easily enrol and vote.
“We need the government to address the barriers to voting commonly experienced by people with disability.
“The committee has an important opportunity to protect and strengthen the right to vote in Australia. The right to vote is at the heart of our democracy.”
Kiera Peacock made a submission to the committee on behalf of Marque Lawyers, focusing predominantly on the need for truth in political advertising laws.
Laws need to be strengthened to prohibit lies in political advertising, she argued, and the range of enforcement mechanisms must be broadened to permit decisive, effective action in a way that does not unduly burden the freedom of political communication.
The current Electoral Act 1992 (ACT) makes it an offence to authorise, cause or permit the publication of electoral advertisement that contains inaccurate or misleading material.
In 2021, Zali Steggall OAM MP proposed amendments to the act, in the Commonwealth Electoral Amendment (Stop the Lies) Bill 2021, which seeks to prohibit the distribution of electoral matter containing a statement (or implied statement) in relation to a matter of fact that is misleading or deceptive to a material extent, or is likely to mislead or deceive.
It goes further at section 321K(2), to create a new “impersonating or passing-off” prohibition, to target conduct that creates the mistaken belief that a piece of electoral matter has been produced by a particular party or participant.
“We consider that the implementation of the Stop the Lies Bill would assist in reviving the integrity of Australia’s electoral campaigns,” Ms Peacock outlined.
“Ideally, reform would go further in prohibiting conduct [that] is misleading or deceptive rather than just prohibiting conduct containing statements of misleading fact,” she added.
In the submission, Ms Peacock recognised that by creating a provision that is too broad, it risks not only constitutional invalidity but also creates a potential chilling effect on new political participants, as well as the risk of the law being deployed for strategic advantage.
Marque’s submission also recognised that the system would benefit by imposing a higher standard upon significant political actors under the act, including candidates, political parties and significant third parties.
As candidates and political parties are the likely beneficiaries of deceptive or misleading conduct, there may be value in altering current laws for them, she posited, including subjecting these actors to laws at all times, not only during electoral periods.
Law reform should also consider conduct that occurs on their behalf by those authorised to run their campaigns, Ms Peacock suggested, those political participants should not be able to escape consequences as they have in the past.
Ms Peacock also recommended enhancing the legislative suite of tools available to the commissioner, noting that laws should consider the modern way in which conduct can occur and disinformation can be disseminated.
In particular, the commissioner should be empowered to take action in respect to social media, she explained.
