Josh Frydenberg (Kooyong, Liberal Party, Minister for the Environment and Energy) Share this | Hansard source

I am pleased to present the Electoral and Other Legislation Amendment Bill 2017 to amend the Commonwealth Electoral Act 1918, the Criminal Code Act 1995 and related legislation.

The bill addresses the recommendations made by the first interim report of the Joint Standing Committee on Electoral Matters inquiry into the 2016 federal election, relating to the authorisation of voter communication, which was tabled on 9 December 2016.

Concerns raised during, and immediately following, the 2016 federal election campaign, as well as submissions received during the Joint Standing Committee on Electoral Matters inquiry into the 2016 election, show that the current authorisation requirements have not kept pace with technological change. Consequently, those who wished to hide their identity from voters could do so by communicating via media—including modern technologies—not covered by the current authorisation regime.

Such practices reduce important information available to voters in making their decision on polling day. They reduce transparency and accountability, and hinder the ability of regulators to identify the source of a communication in the case of noncompliance.

The bill proposes to ensure that:

The bill imposes higher obligations on groups who play a prominent role in influencing political debates, namely those subject to the Commonwealth electoral funding and finance disclosure regime. Exceptions are provided for news and current affairs content, as well as genuinely satirical or artistic endeavours.

As part of its report, the joint standing committee also condemned the impersonation of a Commonwealth officer or entity, and suggested that steps should be taken to ensure that these activities do not occur in the future.

Recognising the importance of this issue, the bill seeks to safeguard the public from misrepresentation and false statements purportedly made on behalf of Australian government bodies. This will ensure that the public has confidence in the legitimacy of communications from Australian government bodies, and will safeguard the proper functioning of government.

Part 1—Authorisation

Australia is a longstanding and successful democracy, and the Commonwealth Electoral Actis one of the oldest pieces of Commonwealth legislation. As the joint standing committee's report identified, sections of the Electoral Act's authorisation regime are outdated. One consequence is that modern campaign techniques like robocalls and bulk SMS messages do not currently require an authorisation informing voters who is trying to influence their vote.

Subsequent amendments have created inconsistencies, with separate requirements for broadcast media and internet advertising. This too is outdated in an era where the same advertisement can be screened on a network's broadcast and streaming services. There are inconsistencies in application to printed matter, too: flyers have different requirements to how-to-vote cards, and some items of clothing are exempt while others require authorisation.

Consequently, the joint standing committee recommended the regime be updated to improve the transparency and accountability of communications, and consistency of coverage.

This bill promotes free and informed voting at elections and referendums by allowing electors to know who is communicating with them. It strengthens Australia's democracy by extending current authorisation requirements and harmonising existing requirements across communication mediums.

This bill responds to the committee's recommendations by requiring that three categories of communication include an authorisation:

The bill also seeks to harmonise authorisation requirements applying to electoral communication across different channels, addressing gaps and inconsistencies wherever possible. To improve transparency, authorisations will now inform voters of the name of the political party behind a communication. Currently this is only a requirement for broadcast advertising. Other entities with disclosure obligations under the Electoral Act will also be required to put their name to their communications—including associated entities of political parties and third-party campaign organisations whose expenditure on influencing elections exceeds the disclosure threshold.

To enforce these new requirements, the bill introduces a new civil penalty regime. This provides a wider range of enforcement options for the Australian Electoral Commission to assist in ensuring compliance. The new enforcement options available to the Electoral Commission include expanded injunction powers, enforceable undertakings, and more substantial fines. The Electoral Commission will also have new information-gathering powers to support enforcement.

In the tight time frames of an election campaign, this civil penalty regime will both discourage inappropriate behaviour and enable the Australian Electoral Commission to police and penalise noncompliance.

The Australian Electoral Commission will also be able to issue legislative instruments to explain how communications in various media should be authorised—for example, social media posts or robocalls. This will keep the regime up to date as new technology emerges, and simplify compliance.

There is a strong public interest in ensuring voters are aware of who is communicating with them without adversely impacting public debate. This bill facilitates transparency and public confidence in Australia's electoral processes. It enables voters to assess the credibility of the information they rely on when forming their political judgement and casting a vote. Ultimately, this bill supports free and informed voting at elections, an object that is essential to Australia's system of representative democracy.

Part 2— Impersonating a Commonwealth body

The joint standing committee also received reports concerning the impersonation of government entities, and the potential for these misrepresentations to mislead voters.

It is essential to a well-functioning democracy that the public have trust in the legitimacy of statements made by government bodies. That trust will inevitably be eroded if individuals are able, with impunity, to represent themselves as communicating on behalf of government bodies, without any authorisation.

Accordingly, this bill further safeguards the proper functioning of our system of government by introducing new offences to criminalise conduct where a person falsely represents themselves to be acting on behalf of, or with the authority of, a Commonwealth body.

For the purposes of the new offences, a Commonwealth body could be a Commonwealth entity, a Commonwealth company, or any service, benefit, program or facility provided by or on behalf of the Commonwealth. These offences will capture false representations in relation to a broad range of government bodies and services, from the Australian Taxation Office through to Centrelink and Medicare.

This bill seeks to address a possible gap in our criminal law which means that impersonating a Commonwealth entity, company or service may not be appropriately criminalised. It is already a criminal offence to impersonate a Commonwealth official. It is less clear whether the current offences cover a person pretending to be, or to act on behalf of, a Commonwealth body, which is why we have taken action.

The bill introduces offences to ensure the punishment reflects the person's state of mind in making the false representation.

The primary offence covers circumstances where a person is reckless as to whether their conduct will result in, or is reasonably capable of resulting in, a false representation. This conduct will be punishable by up to two years imprisonment.

The amendments also create a new aggravated offence where a person holds out that they represent a Commonwealth body or service with the intent to obtain a gain, cause a loss, or influence the exercise of a public duty. The more serious and deliberate nature of this conduct warrants an increased maximum penalty of five years imprisonment.

The bill contains safeguards to ensure that neither of these offences unduly limits freedom of expression.

Conclusion

Australian voters decide the future of our country. It is appropriate that we, as parliamentarians, give voters the tools to make informed decisions in an informed manner on polling day.

Consequently, this government is committed to ensuring that voters know who is communicating with them to influence their vote. These changes update the Commonwealth's authorisation regime for the 21st century—increasing transparency and accountability, without imposing an undue burden on communication with voters. This bill also safeguards public trust in the legitimacy of statements made by Australian government bodies.

The parliament has been well served by the work of its Joint Standing Committee on Electoral Matters, which regularly examines aspects of our electoral system and the issues that arise from the conduct of national elections.

I commend the committee for its work to date in identifying the need to reform the authorisation regime and the Criminal Code, and I commend this bill to the House.

Debate adjourned.

See this speech in context