Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

Labor supports the Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017. A bill that proscribes false representations that a person is, or is acting on behalf of, a Commonwealth body is a necessary addition to the laws of the Commonwealth. This bill, which introduces two offences into the Criminal Code Act 1995 for persons who engage in conduct which results in a representation that a person is, or is acting on behalf of, a Commonwealth body, is a near mirror provision to the existing protections relating to impersonating a Commonwealth officer. The Labor Party supports legislation designed to proscribe unacceptable and false representations that a person is, or is acting on behalf of, a Commonwealth body. We've seen the damaging effect of falsehoods disseminated in election campaigns in recent years, and we strongly support measures that are designed to ensure that the Australian people have safeguards which protect the truthfulness of the information that's provided to them when they're deciding who their elected representatives will be.

There is in this bill both a primary offence and an aggravated offence. The primary offence in proposed section 150.1(1) provides that a person commits an offence if they engage in conduct which results in, or is reasonably capable of resulting in, a representation that the person is a Commonwealth body or is acting on behalf of, or with the authority of, a Commonwealth body. Though this offence does not set out a specific fault element, section 5.4 of the Criminal Code sets out that the fault elements will require that the person intends the conduct or that they are reckless as to whether or not the conduct will result in, or is reasonably capable of resulting in, a relevant false representation. The aggravated offence in proposed section 150.1(2) contains the same elements as the primary offence but also requires that the person engages in the conduct with the intention of (1) obtaining a gain, (2) causing a loss or (3) influencing the exercise of a public duty or function. The penalties for these offences range between a maximum of two years imprisonment for the primary offence and a maximum of five years for the aggravated offence. Further, conduct coming within the scope of one or both of the offences may be the subject of injunctive proceedings.

That said, it is a matter of some regret that this bill comes before the House having found its genesis in the government's and the Prime Minister's continuing petulant tantrum about their lacklustre 2016 election result. By approaching this matter in this way the government is again highlighting the real concern held by the Australian people that this government does not believe in and does not support Medicare, a Labor-designed institution that is critical to Australia's national healthcare system. In order to understand how we have arrived here we must travel back to election night on 2 July 2016. It was very late on election night—in fact, it was early the following morning—that the Prime Minister finally faced the Australian people and commenced the longest dummy spit in Australian political history. Mr Turnbull spent a full four-fifths of his election night speech railing against text messages and the Labor Party, trying in vain to prove his own leadership in the face of losing 14 seats at that election. It was 35 paragraphs of complaints before the Prime Minister turned to a meagre two paragraphs on what he and his government would do for the Australian people. These were the only paragraphs in his election night speech which attempted to set out what exactly the point of his government was. Unfortunately, for the Prime Minister, those two paragraphs are as vague in purpose as the last 18 months of his and his government's embarrassing tenure.

This House well remembers that the political purpose of this bill comes out of an election campaign in which the Prime Minister and the conservative parties of Australia ran a scurrilous and thoroughly dishonest scare campaign about Labor's negative gearing policy. We've learnt over the holidays from a freedom of information request that the Prime Minister and his Treasurer both held advice from the Commonwealth Treasury that predated the 2016 election campaign which stated unequivocally that reforms to negative gearing and the capital gains tax discount would only see a modest downward impact on property prices. Yet that advice—formal advice from the Commonwealth Treasury—was recklessly ignored by a desperate government which spent six weeks prophesying apocalyptic events. It's in this context, the context of this government getting caught up in its own lies, that we arrive on the first day of a new parliamentary year.

While the Labor Party support this bill, we continue to hold reservations about the approach that the government has taken to the promulgation of this legislation. The Joint Standing Committee on Electoral Matters determined in December 2016 that it would conduct a further inquiry and make recommendations in early 2017 regarding the issues of impersonating a Commonwealth officer and Commonwealth entity. In neither the Joint Standing Committee on Electoral Matters second interim report, published in March 2017, nor the third interim report, published in June 2017, did the committee provide a recommendation about the need for legislation in this policy area.

It's fair to say that the Senate Legal and Constitutional Affairs Legislation Committee received numerous submissions that expressed concerns that the new offences went beyond the stated policy intentions and that the scope of conduct caught by the bill had the potential to impact on freedom of expression. In particular, submitters expressed concerns about the adequacy of the protections for satirical, academic and artistic activities. At section 150.1(7), the exemption for satirical or academic purposes limits the use of the exemption to conduct engaged in solely for a genuine satirical, academic or artistic purpose. The use of the word 'solely' in the satirical exemption provision narrows the possible conduct that may be protected by the defence and fails to account for the fact that conduct that has a satirical, academic or artistic purpose may very well contribute in an entirely beneficial way to public debate and discussion.

Notwithstanding these concerns, the Senate Legal and Constitutional Affairs Legislation Committee stated:

The committee has weighed these concerns with the fact that the proposed offences almost mirror the current offences for impersonating a Commonwealth official, including the form in which the proposed exemption has been articulated.

It's to be hoped that these new offences do not operate in such a way as to gag legitimate criticism of governmental activity. Sadly, it's become the hallmark of this government that legislation has been brought before this House which overreaches and lacks the necessary conceptual clarity that's required for parliament to properly scrutinise and be satisfied that the legislation placed before it for enactment is necessary and proportionate to the objectives it seeks to achieve. Where, as was said with this bill, the drafting is 'lazy, confusing and ambiguous', the parliamentary task becomes more difficult. More importantly, when this bill becomes law, it has the potential to cause differing judicial interpretation and uncertainty as to the persons who, and in what circumstances, it may apply to.

One of the central purposes of statutory design is clarity. Ambiguity is an imposition on the rule of law and an undesirable feature of any legislation, particularly criminal legislation, which has the possibility of terms of imprisonment attached to it. In part, these regrettable conceptual and linguistic laws can be understood as the by-product of a government approach to legislating which is more interested in political pointscoring and the settling of perceived grievances than with the proper use of parliament and with the awesome responsibilities of parliamentarians as legislators. This parliament has many serious issues to debate and legislate on, and yet the government is determined again to expend the parliament's time on political pointscoring.

The Labor Party hopes that in future the government will follow proper parliamentary processes, consult widely, accept the advice of experts and develop legislation that is not solely designed to serve a political end. Labor supports the Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017, and I commend the bill to the House.

Ted O'Brien (Fairfax, Liberal Party) Share this | Link to this | Hansard source

This is the 'Mediscare' bill. This Criminal Code Amendment (Impersonating a Commonwealth Body) Bill is the bill that, if enacted, would send Labor operatives to jail for up to two years if they ever again try to impersonate a Commonwealth agency in order to try and steal an election from the Australian people with a lie. In the 2016 election campaign, Labor and its mates in the union movement made over one million mock Medicare cards, deliberately designed to look like the real thing, in order to trick people into believing that the coalition intended to privatise Medicare—to sell it off. Labor and, of course, unionised Labor had their people manning polling booths that said 'Save Medicare'; pushing literature, often quite aggressively, onto voters; and framed by Australian Council of Trade Unions funded and authorised placards also bearing the Medicare logo, declaring that the coalition would privatise Medicare. Labor even sent out a text message on the very morning of 2 July 2016, election day, that identified Medicare as the sender of the message, which said:

Mr Turnbull's plans to privatise Medicare will take us down the road of no return. Time is running out to save Medicare.

The Labor campaign was built almost exclusively on expanding the essential 'Mediscare' message—that the coalition would privatise Medicare.

Labor, right throughout the campaign, knew very well there was no plan to privatise Medicare. However, Labor also knew that there would be an electoral advantage if it could convince enough people, hoodwink enough people, that there was a plan to privatise Medicare. So it carefully prosecuted a preposterous lie—the biggest campaign lie, I dare say, in the history of politics in this country—and brought it to a climax of deception right on polling day to try and steal the election. And you know what? It nearly worked. It nearly worked, as Labor and its shady operatives have repeatedly boasted since. Sally McManus, now Secretary of the ACTU, and ACTU campaign director during the 2016 election, has boasted about the effectiveness of the 'Mediscare' campaign in winning votes for the Labor Party. She said:

Just look at the statistics—we got a 5.5 per cent swing in the seats we targeted.

And there were over 20 seats. The overall swing to Labor in the election was two per cent. In nine of the 13 seats that Labor won at the election, the margin was well within the 5½ per cent swing Labor said it achieved in seats targeted by the 'Mediscare' blitz. A couple more seats were just outside. So, if the 'Mediscare' lie had been accepted by only a few thousand more Australians, Labor would be in government today—on the back of a bold-faced lie that it sought to dupe voters into thinking was from Medicare itself. What a complete absence of decency and morality. What a stain on the principles of our democracy. In 2016, Labor decided that their policies couldn't win the election. Only a disgraceful, dishonest scare campaign could make up for their threadbare policy platform and give them any chance of winning. What complete losers you must perceive yourselves to be that you have to come up with such a vile distortion of the old adage 'whatever it takes'.

The opposition leader was comprehensively pinged for it mid-campaign, on the 7.30 program, and his response just underscores how slippery, how dishonest and how defeatist this whole thing was. Leigh Sales asked:

Isn't the message that you're sending with your hyperbole around Medicare that you don't think that the truth alone can win you the election?

She got some disassembling nonsense from the opposition leader in reply, so she tried again. Leigh Sales said:

… put your hand on your heart and look Australians in the eye and say that the Coalition has a policy to privatise Medicare?

Do you think the opposition leader did that? No, he didn't. He didn't, because he simply couldn't. Not once did the Leader of the Opposition have the guts to face off with Leigh Sales and go on the record to perpetrate the lie.

The Leader of the Opposition knew 'Mediscare' was a lie—after all, he was most assuredly at the table when Labor made it up. He also knew it was incredibly effective, so effective, in fact, that it quickly became the centrepiece of Labor's campaign. Indeed, the very next day after Leigh Sales' interview was the Labor Party's campaign launch in Penrith. It was billed as a 'save Medicare' rally, and it was where—surprise, surprise!—the opposition leader wasn't nearly as wary of the issue that he'd been dodging the night before. 'They're pretending,' the opposition leader told the rally in reference to the claim that privatising Medicare was in fact part of the coalition's plan. But, as we now know, it was in fact the opposition leader who was pretending. He was pretending that there was such a plan, because he knew there was not. Why was he pretending? The opposition leader was pretending simply because he knew that, if Labor could fool enough people, he may well become Prime Minister. Whatever it takes: forget about respecting the electorate, forget about being straight with the Australian people and forget about that old phrase we use 'fair dinkum'. Is this what today's Labor Party has become: to win at any cost, including the complete loss of one's morality? No matter how many lies and no matter how much political muckraking they have to wade through, it's all about whatever it takes.

That episode alone—those 24 hours in July 2016—epitomises precisely why the Australian Labor Party and this Leader of the Opposition are totally unfit for government. They are unfit to govern when they resort to tactics which usually belong to tin-pot dictatorships with make-believe, rigged elections. Any party and any leader so bereft of good ideas and good policies that they feel the need to deliberately concoct for the Australian people the likes of 'Mediscare', as their only hope of winning an election, is clearly unfit not only for government but also to represent even one solitary citizen of this great country.

The extraordinary thing is that Labor was so reliant on and so enamoured of this scam that by the halfway point it was effectively, and probably by design, the sole focus of virtually every aspect of Labor's national campaign and seat-by-seat campaigns. It was ramping up steadily, via a coordinated plan, ever building to a crescendo of fabrication. The opposition leader's bus that he used to tour the country underwent a mid-campaign repaint to emphasise the now all-pervasive 'Mediscare' theme. Election events for the opposition leader became almost exclusively rallies allegedly to save Medicare from, as we now know, a fictitious privatisation plan. And you know what? It almost worked.

And even more extraordinarily, without the measures contained in this bill, Labor would most assuredly do it all again if they had the opportunity. That's obvious from the lack of contrition, and indeed the bragging, that has been displayed time and again by Labor luminaries indulging in retrospectives on this issue. They defend it. They say it wasn't against the law to do what they did. They make the point that the Australian Federal Police, after the matter was referred to them, found that there had been no breach of Commonwealth statutes—no offence committed. And, indeed, there wasn't any such breach, because what Labor had done with this campaign was drive a truck through a loophole in the law—a loophole they had tested and no doubt determined was there, just waiting for them to exploit it.

It is illegal to impersonate a Commonwealth official. It is not illegal to impersonate an arm of the Commonwealth, an agency of the Commonwealth, such as, pointedly, Medicare. Labor's National Secretary, Noah Carroll, actually told the Joint Standing Committee on Electoral Matters that the 'Mediscare' text message was all about freedom of speech—political debate. He said, and I quote, 'This is a healthy thing.' He also said, and I quote directly from his evidence:

I do not think it necessarily mattered who people thought that message came from; I think the reality of it is that people believed it full stop. That is why it was effective.

Therefore, according to the man who will probably be running Labor's next federal campaign, together with this Leader of the Opposition, the message to their troops is: 'Whatever it takes. No matter how immoral it is, whatever it takes. If you can get away with it, never mind the truth; just do it.' That's their approach. 'If it effectively sways even short-lived opinion, then run with it.' That is their strategy. This is gutter politics. Unfortunately, it is also the politics of today's Australian Labor Party. This is the politics of wilful deception, akin to deliberately releasing a pernicious virus that exploits digital and social media, infecting whole electorates with a lie.

This bill before the House today aims to stop the Labor Party from ever being able to run such a campaign again. It extends the illegality of impersonating a Commonwealth officer to also include impersonating a Commonwealth agency such as Medicare. The maximum penalty for doing so will be two years in prison, which is commensurate with the current penalty for impersonation of a Commonwealth official. This bill also creates a mechanism for injunctions against such behaviour, which is important if in the future any political party or organisation attempts to run a similar deception campaign.

Can I also say it is immensely telling within the context of this debate that, if reports are right, Labor has indicated an amendment to the bill to make it a defence if offending communications—that is, communications falsely claiming to come from a Commonwealth body—are authorised under electoral legislation. Can you believe the guile of the Australian Labor Party? We assume they, on the one hand, accept the proposition that it should be unlawful to deliberately deceive the Australian people, but on the other they seek to add 'except where the lie is officially authorised during an election campaign'. Good God! Just how morally bankrupt has the Australian Labor Party become?

Australia requires the passage of this bill, with no self-serving amendments and no 'get out of jail free' cards. At the end of the day they can dodge all they like, but it is time they are held to account.

Stephen Jones (Whitlam, Australian Labor Party, Shadow Minister for Regional Services, Territories and Local Government) Share this | Link to this | Hansard source

The bill before the House, the Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017, creates a new offence. I want to say at the outset that the bill is not necessary. It creates a new offence of impersonating a Commonwealth office or agency. We'll support the bill, but we argue quite strenuously that it is not necessary. There are already sufficient powers and offences within the Commonwealth Criminal Code to cover the offences, if they could be proved, that the member for Fairfax complains so bitterly about. I will join the member for Fairfax in debate on this particular issue because his contribution to this debate made it absolutely clear that there is not a scintilla of public interest in the bill before the House. It is all about the private political interests of the Prime Minister and the woeful performance of his party in the 2016 election. They only just managed to fall across the line in the 2016 election, so they are now attempting to change the rules to make it harder for their opponents to campaign against them.

Let's join the member for Fairfax in his hyperbole about what the bill and the debate are really about. The member for Fairfax is trying to convince this chamber and the Australian people that we were not joined in an argument about the future of Medicare in the 2016 election. You would have to have been residing on another planet if you did not understand that Medicare and the woeful performance of the Abbott and Turnbull governments in relation to health care were not a central issue of concern to voters in the 2016 election.

Labor is rightfully very proud of the contribution of Medicare. February 1st marked the 33rd anniversary of the start of Medicare, a historic Hawke government achievement, following on from the landmark efforts of the Whitlam Labor government to introduce Medibank a decade earlier. It took two Labor governments more than two decades to embed what is now seen by all Australians as a birthright: the ability to access affordable, world-class health care in a GP, in a public hospital and also by accessing drugs that are listed on the Pharmaceutical Benefits Scheme.

Today the coalition like to paint themselves as friends of Medicare, but we know that, for the entirety of the period between May 2014 and that terrible election performance and the closure of polls in 2016, the government were doing everything within their power to dismantle and defund Medicare and its associated organisations. They claim that what Labor was saying about Medicare is not true. This is what Labor was saying about Medicare: the GP tax—

Mr Fletcher interjecting—

If the minister at the table could keep his mouth closed for long enough he might learn something. I know that will be an enormous issue of restraint for the minister at the table. We told people that the GP tax, the Medicare rebate freeze, was going to lead to GP practices around the country stopping bulk billing. We told people the GP tax and the Medicare rebate freeze was going to lead to an increase in GP fees. Both of these things were happening at the very same time that the Prime Minister was standing up and talking to any TV camera that he could stick his head in front of and saying it was a lie. Even when we took photos to the Prime Minister, taken in my electorate, of GP surgeries that had signs on their windows saying—

Julie Collins (Franklin, Australian Labor Party, Shadow Minister for Ageing and Mental Health) Share this | Link to this | Hansard source

We had the same.

Stephen Jones (Whitlam, Australian Labor Party, Shadow Minister for Regional Services, Territories and Local Government) Share this | Link to this | Hansard source

and I hear the member for Franklin, who is here with me today, saying they were in her electorate as well—'This practice will no longer be bulk-billing, because of the government's GP Medicare rebate freeze,' still they said it was a lie. When it was discovered there was a secret process in train to privatise some of the billing functions, some of the IT functions and claim processing systems, and we brought this to the attention of the Australian people, still they said it was a lie. What the member for Fairfax, the minister and the member for Bradfield are trying to do today is use this elaborate legislative and parliamentary process to tell the people of Australia that they are mugs, that they cannot see the truth when it is clearly presented to them. That's what the member for Fairfax is saying: the people of Australia are mugs. We do not think the people of Australia are mugs. We think they know that they see in the Australian Labor Party a friend of Medicare and they see in the coalition a party which, since 1972, has taken every single opportunity available to it to try to dismantle and undermine the universality of Medicare. Australian people are not mugs, Sunshine; they get it and they found you out.

The coalition are attempting, by the introduction of this bill today, to detract attention from the fact that they do not have a plausible, credible, cohesive policy agenda when it comes to fighting corruption in government and in politics. Last week the Leader of the Opposition took the opportunity of an address to the National Press Club to announce that a future Shorten Labor government would introduce a National Integrity Commission. He made the observation that at every state level there is a broad based anti-corruption investigative body which is charged with the responsibility of weeding out and preventing corruption in public life, whether that be within the elected arm of government, the executive and administrative arm of government or even the judiciary. He made the observation that, in recent surveys of Commonwealth public servants, too many had said that they had seen misconduct, cronyism and nepotism within the administration of the Public Service: five per cent. Some might say that, compared to other countries around the world, five per cent is a pretty good result. I'm sure that any right-thinking member of this place would say five per cent is five per cent too many. Is there any surprise that, when you look at Transparency International's Corruption Perceptions Index, Australia ranks 13th of 176 countries, but has dropped six places in six years?

Ted O'Brien (Fairfax, Liberal Party) Share this | Link to this | Hansard source

Is that the CFMEU?

Paul Fletcher (Bradfield, Liberal Party, Minister for Urban Infrastructure and Cities) Share this | Link to this | Hansard source

It could've been Eddie Obeid's doing. It could've been the Health Services Union.

Stephen Jones (Whitlam, Australian Labor Party, Shadow Minister for Regional Services, Territories and Local Government) Share this | Link to this | Hansard source

I hear the minister at the table raise allegations of certain elected scoundrels who are now doing time in jail—not long enough in my view, but that's a matter for the New South Wales judiciary to determine.

Paul Fletcher (Bradfield, Liberal Party, Minister for Urban Infrastructure and Cities) Share this | Link to this | Hansard source

What about Ian Macdonald?

Stephen Jones (Whitlam, Australian Labor Party, Shadow Minister for Regional Services, Territories and Local Government) Share this | Link to this | Hansard source

I can guarantee you, friend, that I have more bugs to bear and bones to pick with the former MLC from New South Wales than you ever could, but the point to make on this is that the corruption was exposed by the New South Wales ICAC. It would be naive to suggest that corruption such as this stops at a state border. It would be naive to suggest that the corruption we saw with the Australian Wheat Board, with the bribes and kickbacks to rogue dictators in the Middle East, and the corruption we saw with the Reserve Bank subsidiary Securency were isolated incidents—or the serious corruption that's being alleged and unveiled in a recent Four Corners program about the administration of water licences and the allocation of water rights in New South Wales and Queensland. Only a fool—or perhaps the member for Fairfax or the member for Bradfield—would suggest these are isolated incidents or that the tendency to corruption stops at a state border.

If the members are serious about both the perception and the reality of corruption in public life, they will put aside this unnecessary bill, which is attempting to rewrite the history of the 2016 election, and join with Labor and introduce legislation in this session of parliament to create a broad based anticorruption body in the Commonwealth jurisdiction. That's what genuine legislation looks like. That is what a government that is truly committed to improving the tenure of public discourse, the administration of government and the conduct of politics in this country would do—not this nonsense which the Joint Standing Committee on Electoral Matters has said is unnecessary and duplicates existing offences. Quite rightly, the committee has come to these conclusions on the basis that this is nothing more than a political stunt, an attempt to rewrite the history of the 2016 election.

There was no sadder sight in Australian politics than the Prime Minister hiding behind the gilded gates of his Wentworth mansion too nervous to come out and face the media—let alone his own party, who were ropable because of his incompetent conduct of the 2016 election campaign. If the Prime Minister or the cabinet members who have approved this legislation are looking for a scapegoat, looking for an avenue through which to vent, I suggest they look at their own behaviour and not at the legitimate campaigning of Australian Labor, which has proudly campaigned on the virtues and the necessity of Medicare for over 33 years. The Australian people aren't mugs. They take offence when members opposite stand up in this place and say they were somehow conned into exercising their votes in the way they did at the 2016 election. Labor doesn't think the Australian people are mugs. We think they've got a pretty good read on what that mob over there want to do to Medicare and the plans they have for this country. So I ask the other side to step back and have a look at what we really need to do if we're going to address corruption and the perception of corruption in the Commonwealth government and its administration. Join with Labor and work with us to draft and bring into this place, in this session, a national integrity commission bill. We will all vote for it, and Australia will be a better place as a result of it.

Ben Morton (Tangney, Liberal Party) Share this | Link to this | Hansard source

The Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017 will amend the Criminal Code Act 1995 to safeguard the Australian public from misrepresentation and false statements purportedly made on behalf of Commonwealth bodies. The government strongly condemns the impersonation of Commonwealth bodies and is committed to strengthening public confidence in all communications that come from them. Recognising the importance of this issue, this bill introduces new criminal offences and an injunction power to prevent people from impersonating a Commonwealth body. 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 be eroded if individuals are, with impunity, able 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 for criminalised 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, indeed, 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 acting on behalf of, a Commonwealth body, which is why the government has taken action. This bill introduces offences to ensure that 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 will be 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. These penalties are commensurate with offences for impersonating a Commonwealth official. The bill contains safeguards to ensure that neither of these offences unduly limits freedom of expression.

The Joint Standing Committee on Electoral Matters, of which I am a member, has received reports concerning the impersonation of government entities and the potential for these misrepresentations to mislead voters. This has been well publicised with the 'Mediscare' experience in the last federal election. The committee received a number of submissions on this matter and was able to question those impacted by the 'Mediscare' texts and handouts that were seen at booths and sent on election day last year. Importantly, Noah Carroll, the National Secretary and Campaign Director of the Australian Labor Party, appeared before the Joint Standing Committee on Electoral Matters at public hearings here in Canberra. I will read the text message which we refer to:

Mr Turnbull's plans to privatise Medicare will take us down the road of no return. Time is running out to Save Medicare.

It's not the text message that's the problem; it's the fact that, in the field that would normally show who the sender is, the word 'Medicare' is there instead. That text message purports to come from Medicare itself. There is nothing wrong with the communication of that message, as long as the author, the sender, of that message is known. It was something that the Labor Party absolutely avoided on election day. This text message was sent out at about 11 am in the morning. There was plenty of time on election day for the Labor Party to admit that they were the sender. There was enough speculation in the media for them to confirm it, or to know that there was angst in the community about who the sender of this text message was, but they didn't. They remained silent. It was a strategy on their part to remain silent, to let it go all day while people were voting and to make them think it was a bona fide message from Medicare, when it certainly was not. We're supposed to believe this was all an accident by Labor. A spokesman for Queensland Labor said, after it was eventually confirmed that it was sent by Queensland Labor, that the message was not intended to indicate that it was a message from Medicare; rather, it was to identify the subject of the text. I think that's using absolute weasel words after the fact to say that it was not intended to indicate that it was a message from Medicare but, rather, to identify the subject of the text.

I've worked on campaigns and I have some admiration for all people who work on campaigns—people who work on Liberal Party campaigns and people who work on Labor Party campaigns. I can assure you that, when you send something to the printers, you check it; you double-check it; you proof it. When you send a text message, you test it. You send it to a small group of people. You make sure that the text message comes across exactly how you want it to come across. There was no doubt in this case that the Labor Party of Queensland wanted the field that would normally describe who the sender was to instead show 'Medicare', not because it was designed to be the subject of the text but because they wanted it to look like that, to fool voters into thinking it actually was from Medicare.

I've got greater confidence in the ability of the people that work for Queensland Labor. I think they're smart people; I think they've been too smart by half on this. There was no accident. It was an absolutely rolled-gold deception that they absolutely knew they were getting into. The fact that not even on election day itself could they admit that they were behind it actually proves the point that they were more happy in making sure that voters got this message thinking it was from Medicare, and after the election, when it didn't matter, they'd confess and say that it was from them. It scared people. It was inappropriate, and they should absolutely know better. It's a real shame in this House that Labor Party members opposite can't just admit that their campaigners pushed the envelope way too far and say: 'They pushed it way too far. We would never do it again.' But, no, instead they come into this House and defend it. They defend that action as completely appropriate. Mr Carroll said he thought there'd be no confusion at all, when he gave evidence to JSCEM. They wanted confusion; they wanted to hide the fact that they were the sender of the text message. As the member for Fairfax said, Labor has an attitude of 'whatever it takes', and we saw that alive and well in this incident.

This bill also enlivens the injunction provisions in the Regulatory Powers (Standard Provisions) Act 2014. This will provide persons whose interests have been, or would be, affected by the false representation the opportunity to prevent such conduct by a court-issued injunction. The bill will enable affected persons to apply to the relevant court for an injunction to prevent conduct in contravention of the new offences in the Criminal Code. The purpose of this power is to enable affected persons to act swiftly, if needs be, to prevent conduct amounting to false representation of a Commonwealth agency. These amendments are critical to protecting Commonwealth bodies from criminal misrepresentation and to ensuring that the public has confidence in all communications that come from the Commonwealth government. 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.

In conclusion, it is the government that 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. The bill increases transparency and accountability without imposing an undue burden on communication with voters. It removes that loophole that the Queensland Labor Party campaigners found and exploited—something that they got away with under the current law, something that they should admit crossed the boundaries of what is right in a campaign. And this law will stop them in future taking such deceptive action to use the good name of Commonwealth organisations, and the people who work for them, to advance their political interests, to advance their political campaign, to con mums and dads and elderly people into thinking that they're getting a message from a Commonwealth agency, when instead it was a tricky message from some tricky campaigners working for the tricky Labor Party in Brisbane. This bill also safeguards public trust in the legitimacy of statements made by Australian government bodies.

This government is committed to safeguarding the proper functioning of Australia's democracy and ensuring that Australians have trust in the validity of communications from government bodies. This bill will strengthen public confidence in all such communications and ensure that those who deceive the Australian public are ultimately captured by the law.

The parliament has been well served by the work of the 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 Joint Standing Committee on Electoral Matters under the chairmanship of Senator Linda Reynolds for its work to date in identifying the need to reform the authorisation regime and the Criminal Code. I commend this bill to the House.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

How do you know when there's a Liberal government in power? Amongst other things, there's no action on climate change, vulnerable people seeking asylum are demonised and tortured, inequality spirals, big business and the one per cent are given tax breaks, and there are a lot of old conservative people defending freedom of speech and the right to be a bigot. The Turnbull government has gone where no other conservative government has gone before. They're trumpeting nonstop about the inalienable right of freedom of speech, but beware, because, if you use that right to make fun of the government, you might end up in prison under this bill. This bill, if passed, would mean that, if a person:

… engages in conduct; and

(b) the conduct results in, or is reasonably capable of resulting in, a representation that the person:

  (i) is a Commonwealth body; or

  (ii) is acting on behalf of, or with the authority of, a Commonwealth body—

and you aren't one, that's jail for two years. The only protection given in this bill is that:

conduct does not include conduct engaged in solely—

I repeat, solely—

for genuine satirical, academic or artistic purposes.

In other words, if you're engaging in satire or academic research but you might have some other purpose, maybe a political purpose, you face jail time under this bill.

I have to ask the government: is this bill itself genuinely satirical? Is this a joke? If you're going to say the only people who can avoid jail time are the ones who engage in genuine satire, what is genuine satire? What's non-genuine satire? What test would one apply to determine the difference? Who will determine the difference if this bill becomes law? Will the government be creating a new body or a person to review satirical works that mention the Australian government or its representatives in order to determine whether the act has been contravened? Will the government be convening focus groups to whom they will show various satirical, academic or artistic conduct that they think might contravene the act to determine whether or not the conduct is genuine? What happens if someone is engaging in conduct not solely for genuine satirical, academic or artistic purposes? Who is defining the scope of the word 'solely'? Will someone be counting the comments in response to a particular story or video and creating a tally to determine whether or not the act has been contravened? Will the government be shutting down The Betoota Advocate? In their submission the Australian Lawyers for Human Rights ask:

… under the proposed legislative regime would each episode of Clarke and Dawe, The Chaser, The Juice Media's "Honest Government Ads"or Shaun Micallef's "Mad as Hell"need to be prefaced by explanations that the characters are not representing the federal government to avoid any risk of all concerned being jailed for up to 5 years?

You might think this is fanciful, except the government has already taken steps, before this bill has been passed, to haul people up for allegedly impersonating the Commonwealth government. Some members of this place might be aware of The Juice Media's hilarious work in their Honest Government Ads YouTube series. This series has gone viral many times. The reason it has such a wide reception is that it holds up a light to the chaos and dysfunction of our current federal government, using those dreaded weapons of satire and humour. These people have been on the receiving end of contact from a government department saying that some of the images they use potentially might confuse people and make them think they are actually speaking on the behalf of the government. I can sympathise with the government to some extent, because sometimes it is legitimately impossible to differentiate fact from fiction when this government implements policies. I can understand how the Australian public might be confused between a farce and this government. The Juice Media have made this point creatively many times in their popular videos.

Take, for example, the recent video produced by The Juice Media on the government's bungled Centrelink robo-debt fiasco. I remind you, as I read this out, that this is an organisation that has already been approached by the government to say, 'You potentially are impersonating government.' I think it's worth our looking closely at the content this bill apparently seeks to address, so that in this place, as MPs, we can exercise our due diligence and clearly comprehend the absurdity of this legislation. The Juice Media's video takes the form of a clearly mocked-up fake government ad, and the narrator, posing a Centrelink spokesperson, reads the following script to camera. I wish now, in the interests of accuracy, to quote from this satirical video for the Hansard, so that all members can cast a discerning eye over whether this material is genuinely satire or whether the producers face jail time, because that's what this bill is seeking to do: make the government the arbiter of what is satire and what isn't. Let's have some of it. I quote now from The Juice Media's video about the government's bungled Centrelink robo-debt programs:

Hello, I'm from Centrelink

Did you recently commit the crime of accessing social security?

If so, you will have received a polite letter from us over the Christmas holidays indicating that you might need to pay us a huge amount of money.

You may also receive a visit from our friendly debt-collectors.

Did you know that due to our recently introduced algorithm, at least 1 in 5 people who received our letter didn't actually owe us any money at all?

We knew this! We just thought it might be more fun to force you to prove yourself innocent. It's not like you bludgers have anything better to do.

But we're here to reassure you.

Centrelink's algorithm is not malfunctioning. It's doing just what we asked it to: sending out a clear message to poor people that this Government hates you.

Above all, it's distracting you from the actual bludgers who really know how to rort taxpayers.

That's why we're going after the most vulnerable people, like single-income mothers and people with disabilities ... rather than billionaires who stash their money in corporate tax havens; or the top third of companies in Australia that pay no tax; or ministers who blow public funds on private flights to their own weddings, parties and house-buying sprees...

If our efforts to ruin your life are causing you distress, call us on 13 24 68 and if you don't die of natural causes while waiting to speak to a real person, we'll gladly refer you to counselling. Just don't go to your local MP or the media.

Centrelink.

(Authorised by the Department of Inhumane Services and Tax-payer Rorts)

I can see how the public might be confused between this joke video which was released and this actual government, which itself has indeed been a joke with its mismanagement of so-called Centrelink debts. But such is the level of angst in this government that this organisation, Juice Media, has already been told to stop using certain logos and coats of arms because they are official Commonwealth property. So it makes us very worried that this is exactly what the government has in mind with this bill.

I will provide you with another example of such satirical material. So that the House can be properly briefed on exactly what this bill is dealing with, I offer another script from the same video, 'Honest Government Ads'. This video script was written and released in relation to the government's recent marriage equality plebiscite. The video inserts an 'H' in the word plebiscite, but not in a way that would be unparliamentary, I'm sure. Let me quote from that:

G'day I'm from the Australian Government.

Are you ready for the marriage equality Plebishite?!

A Plebishite is when we force the nation to come together and do something really plebby and shite: such as voting on whether certain members of our society deserve the same human rights as everyone else.

Cuz in Australia, WE decide who gets to have human rights (and who doesn't).

PLEBISH1TE!

We're not doing this to find out your opinion ...

We already know from actual surveys that 72% of you support marriage equality; and that this figure is even higher among young Australians (84%).

We're just doing this to please a bunch of dinosaurs from the Late Homophobic Era, who really don't want Australia to advance into the 21st century.

Which is why instead of having a vote in Parliament we're blowing tons of money on a non-binding, non-compulsory postal survey.

But hey, at least we'll be teaching millennials how to use stamps and envelopes.

As well as providing a national platform to vilify and demean LGBTI Australians and their children, in the process.

PLEB1SHITE!

By making it a postal vote, we've made it as hard as possible for those in favour of marriage equality to participate.

So why not just stay home in front of the telly and tune in to The Bachelor, watching heterosexuals flaunt their exclusive right to marriage under Australian law.

We'd especially like all you young Australians to NOT register by the deadline of August 24.

Because we know how much you hate us, so the last thing we want is for you to be ready to vote in the next federal election.

Marriage Equality.

Still not a thing in Australia!

(Authorised by the Department of No Leadership & Unnecessary Harm)

I think I am beginning to understand the government's concern with satire: it is becoming increasingly difficult for people to separate fact from fiction. The government, which already has organisations like this in its sights and has already sent them threatening correspondence, is now wanting to introduce a bill that, for the first time, will put people under penalty of jail time if the satire they engage in is not genuine but somehow impersonates the Commonwealth government. No wonder this government is worried!

All jokes aside, the reality is that, if this bill is passed, it will make producing such videos and writing such material potentially punishable by a jail term. For a government that purports to care about freedom of speech, that is not very funny at all. We are forced to ask these questions and quote these videos, which in turn shows us how ridiculous this bill really is and how poorly drafted it is. Surely this is one of the worst pieces of legislation in history to enter this place.

Genuine satire, solely for 'satirical, academic or artistic purposes'—these are very vague words being used in a provision that can result in people going to jail. This from a government that pretends to care about freedom of speech and individual liberties. Will we be able to look to the courts for inspiration and guidance about what these terms mean? No, because, as Dr Giordano Nanni of The Juice Media submitted to the inquiry:

There is a dearth of case law on what 'satire' even means in Australia …

Or is defined as. So, there is not much precedent to guide us and nothing in the bill. A fundamental flaw, as Mr Jeremy Gans pointed out in a submission to the inquiry, is that it :

… criminalises reasonable misunderstandings, rather than deception, in a context where reasonable misunderstandings (about the role and reach of Australia's federal government) are absolutely commonplace (and are widely recognised as such by all informed people.)

There are valid reasons to prohibit false representations of the Commonwealth and Commonwealth bodies. Of course there should be recourse for someone who, for example, calls someone up pretending to be from the tax office demanding payment, attempts to infiltrate a government organisation using false credentials or uses a false identity to extract information. But should someone be thrown in jail because they dress up like the Prime Minister and pretend to be Prime Minister Turnbull on YouTube, because they make a satirical video that is imitating government advertising? If someone dresses up like me and stands outside my well-signposted office in Melbourne and someone passing by or online thinks they are me, are we seriously saying that they could be thrown in jail? That's how this bill reads. This bill would not be out of place in North Korea. If you make fun of the faultless wise overlord of the universe, prepare to feel the crushing weight of the state as you are dragged away and imprisoned for your cheek and insolence.

The comparison reveals the true intent of the bill. This bill is really about power. In his seminal book Rules for Radicals, Saul Alinsky notes:

Humor is essential to a successful tactician, for the most potent weapons known to mankind are satire and ridicule.

This bill is about cracking down on dissent. We are seeing the government do this elsewhere with people who dare to speak out—they are going to potentially lose their funding or their charitable status—and now they're doing it here as well to anyone who dares impersonate the government for the purpose of satire or art.

This is about avoiding criticism, avoiding scrutiny and avoiding ridicule. This bill reminds me of a petulant teenager who has had their feelings hurt and has just decided to lash out. The late great John Clarke deployed humour with devastating effect. Clarke would have impersonated countless prime ministers, ministers and public servants over the years and his marvellous critiques of the senselessness of government policy will live on forever in the Australian psyche. Under this legislation, Clarke's skill may have tripped him up. Someone who isn't political may have flicked on the television just in time to hear Bryan Dawe announce that he was interviewing the Treasurer. Of the millions of people who have watched Clarke and Dawe, there no doubt would have been some who genuinely believed John Clarke was the Treasurer. 'Throw him in jail,' says this mob. If it's not genuine satire, if it's done for a purpose that might have a political purpose, you lose your protection under this absurdly and poorly drafted bill.

I also have a sneaking suspicion that this bill would not be before us if some of the ridicule, the satire and the conduct directed at this government didn't hit as close to home as it has. To be ridiculed you have to do something ridiculous. Not only is this legislation ridiculous but the government trying to push it through is as well.

Craig Kelly (Hughes, Liberal Party) Share this | Link to this | Hansard source

We've just heard 15 minutes of absolute and complete red herrings, trying to create an excuse as to why the Greens think it is okay to subvert elections, to deny fair and true election results, through impersonating government bodies. Clause 150.1(7) clearly states:

conduct does not include conduct engaged in solely for genuine satirical, academic or artistic purposes. Would anyone think that the brilliant satire of John Clarke would not come under that definition?

That is what the Greens expect us to believe. They are trying to create a red herring in the debate about this bill.

Deputy Speaker, I'll tell you why this bill is most important. There can be nothing more critical in maintaining our democracy than that elections are fair and they are free and they are decided by the fair will and true desire of the Australian people. Nothing could be more important; no principle that we have to uphold in this House could be greater.

Yet at the last election, we saw the Australian Labor Party engage in a deceptive and fraudulent campaign to intentionally mislead and deceive the Australian public. They sent out messages—and they didn't just send the messages out; they actually put the spadework in; they put the groundwork in to try and convince the Australian people that perhaps the coalition was, absurdly, selling Medicare. How you could sell Medicare is simply beyond me. I remember standing at Jannali railway station during the last election campaign, and there was a large crowd of people going through and one guy yelled out, 'They're selling Medicare!' I thought to myself, 'That is just nonsense.' How could anyone actually believe that? But the Labor Party had been sowing the seeds for their campaign of deception and dishonesty. And we know, Deputy Speaker, that in the dying days of the last election they sent out perhaps thousands, perhaps hundreds of thousands, of text messages purporting to be from a federal government agency—purporting to be from Medicare. It was a line-ball call as to whether they actually broke the law: if they had impersonated an officer of Medicare, they would have broken the law, but the way our laws were written, no-one expected that a political party would engage in such dishonest and deceptive conduct as the Australian Labor Party did at the last election.

That is why we must fix this law up—because, if we do not do this, who knows what cunning plan the Labor Party will come up with at the next election? Will they impersonate Centrelink? Will they impersonate Veterans' Affairs? Who knows? Do you know why we have to ask that question, Deputy Speaker? Because they showed no contrition whatsoever for their past misdeeds. You would think they would have been a little bit embarrassed, a little bit apologetic, and that they would have said, 'We are sorry that we tricked and misled thousands and thousands of Australians into believing that the coalition was going to sell Medicare; we are sorry.' But instead they came into this parliament and they wore it as a badge of honour. The Australian Labor Party wear as a badge of honour the fact that they deceived people at the last election. That is why this is so important.

We've seen time and time again that the Australian Labor Party have no respect for our democratic traditions. We've seen, with the citizenship issues, how they have no respect for the Constitution. Before parliament rose for Christmas, we saw the Australian Labor Party knowing full well that they had members of parliament on their side who would not be fit to sit under section 44. The coalition had done the right thing: the member for Bennelong had resigned from parliament because he was not able to prove 100 per cent that he complied with all of section 44 and went to a by-election. So we were short on this side of the parliament, and the Australian Labor Party took advantage of that, knowing full well that they had members, such as the former member for Batman, who should not have been here. That is the respect that the Australian Labor Party have for the Constitution. We've seen the respect that they have for our democracy. That's why this bill must be supported—because at the next election, even though people are going to be aware, we do not want to see a repeat of those tactics of dishonesty, by impersonating Medicare or going on to impersonate other government agencies.

I now turn to the specifics of the bill. The bill introduces new offences under the Criminal Code Act 1995 to criminalise the impersonation of a Commonwealth body. Specifically, the offences will prohibit a person from falsely representing themselves to be, or to be acting on behalf of or with the authority of, a Commonwealth entity, company or service. So, to pretend that you are from Medicare or that you represent Medicare will be an offence. To pretend at election time that you are from Centrelink in order to frighten old-age pensioners will be an offence. To pretend that you are from Veterans' Affairs at election time in order to mislead and deceive the Australian public will be an offence, and so it should be.

These arrangements will cover the false representations in relation to a wide range of government bodies, including departments such as the Department of Health, Commonwealth corporations such as NBN Co, as well as Commonwealth services such as Centrelink and Medicare. The new offences will address a possible gap in our criminal law, which means that some conduct purportedly on behalf of a Commonwealth body has not been appropriately criminalised. The bill will promote public confidence in representations that come from Commonwealth bodies and, by doing so, safeguard the proper functioning of government. More importantly, they will safeguard the proper functioning of our elections—nothing could be more important.

The bill introduces both a primary and an aggravated offence to ensure that the punishment reflects a person's state of mind in making a false representation. I would say that a state of mind to deceive people at election time should be one of the highest levels of aggravated offence. Under the primary offence, a person who is reckless as to whether their conduct will result in a false representation that they are, or act on the behalf of, or with the authority of, a Commonwealth body will face up to two years imprisonment. Under the aggravated offence, a person who engages in such conduct with the intention of obtaining a gain, causing a loss or influencing the exercise of a public duty will face up to five years imprisonment. These penalties are consistent with those for other similar offences under the Criminal Code for impersonating a public Commonwealth official. It's a simple principle. There should be no difference between impersonating a Commonwealth official and impersonating a Commonwealth entity. That was the loophole that the Labor Party cynically exploited in order to deceive voters at the last election. That is the loophole that this legislation seeks to close, and I hope that we have full support from the opposition on this.

These amendments are essential to a well-functioning democracy where people can have trust—which they never had with the Labor Party at the last election—in the legitimacy and accuracy of statements that the Australian government makes. It is already a criminal offence to impersonate a public official such as a minister, a member of parliament or an employee of a government department. This exposes the complete red herring that we heard from the member for Melbourne when he was trying to create a reason to oppose this legislation, to try and enable those on the Left to engage in deception and dishonesty. The law is already there. It is already a criminal offence to impersonate a public official such as a minister or a member of parliament. That law exists at the moment. I'm not aware of any action under the existing legislation against any satirical comic or the like, or an artist or someone doing an artistic work. It is there in black and white. If the issues that the member for Melbourne talked about and the red herrings that he raised were a problem, they would have already occurred under the existing legislation. The fact is that they haven't, and it shows that his whole argument is nothing more than a complete red herring. The new offences will put the criminalisation of this conduct beyond doubt and ensure that those who create false representations in this way are punished with the full force of the law.

The new offences will capture various types of conduct including, but not limited to, writing a letter on a letterhead of a Commonwealth body, and sending an electronic communication, including an email or text message, imputed to be from or on behalf of a Commonwealth body—as we saw at the last election with hundreds of thousands of those text messages sent, organised and paid for on behalf of the Labor Party, purporting and creating the false and misleading impression that they were from Medicare when they were from the Australian Labor Party and were designed to deceive people. It will also be an offence to take out an advertisement in the name of a Commonwealth body or issue a publication in the name of a Commonwealth body.

None of these offences is intended to infringe the implied freedom of political communication or to unduly limit freedom of expression. The offences do not cover conduct that a person may engage in for, as I said before, genuine satirical, academic or artistic purposes. They also do not affect comment or criticism of a Commonwealth body, provided this is done without falsely representing that the conduct is undertaken by or on behalf of the Commonwealth. To make the matter very clear, the legislation expressly states that the new offences do not apply to the extent, if any, that they infringe on political freedom of communication.

As I commence this debate, amongst everything that we do in this parliament, the most important task that we have is to uphold our democracy, and that requires that we have fair and free elections without fraud or deception. Political parties can advocate their cases. They can gild the lily, and they can make predictions of the future, but they cannot, and they should not, engage in deception. And that, sadly, is what we saw at the last election.

This is important legislation. It goes to the integrity of our political process. I would expect not only that every single member of the Labor Party that was elected at the last election, both here in the House of Representatives and the Senate, vote for this bill but that, when they do so, they show some contrition about the deception and the dishonesty that they showed at the last election. They should come into this parliament and they should apologise to the Australian public for that misleading and deceptive conduct. That, and support for this bill, would go a long way to show that the Australian Labor Party believe in our democracy and believe in fair and free elections. I hope that, when the vote is called, that is what we will see. With that, I commend this bill to the House.

Debate adjourned.