Scott Ryan (Victoria, Liberal Party, Shadow Parliamentary Secretary for Small Business and Fair Competition) Share this | Hansard source

I rise in this debate to raise a few other concerns. I understand Senator Xenophon's very legitimate concern about what happened with him in the last federal election. He has presented those matters to the Joint Standing Committee on Electoral Matters. I think he has a legitimate complaint about people trying to claim his title, his name and the first letter of his surname, which seems to be his particular brand.

But the concern that Senator Xenophon raises is—we do tend to come back to the conduct of the Labor Party over and over again in this—with respect to the 2010 state election in South Australia. This would not necessarily have stopped what happened at the polling booths, with people, effectively, representing themselves as aligned to Family First. The truth is that if it happens on polling day there is very little opportunity to stop it quickly.

Senator Xenophon interjecting—

I understand, but I do not necessarily think it stops the problem as it happens. There may be a penalty or a fine levied later on, but it does not actually stop the problem. There are pretty strong laws, for example, in Queensland, which were all exposed during the Shepherdson inquiry, about enrolling at the right place and not having a dozen people enrolled at one house. But the threat of imprisonment did not stop the misbehaviour. So I hasten to say that this does not necessarily prevent misbehaviour; it may actually seek to punish it.

But there is a bigger issue here: whether or not there should be a truth in advertising test in political debate. I am quite hesitant about this. I have seen this operate in other forums. I have seen this operate in voluntary organisations and non-government organisa­tions. I do not know if the Trade Practices Act 1974 is the best example for us to use on this. Senator Xenophon and I have had long discussions about the accessibility to smaller players of what was formerly known as the Trade Practices Act as well as competition law for them to enforce their legal rights. It is clear there are problems in that space. I do not know if that is the path we necessarily want to go down with political debate. I do not know if that is the test we want to apply, because it does not really help the smaller player.

There is actually a bigger issue: do we actually want to see an increasing legalisation of our political processes? A lot of the claims made in political advertising and political debate are contestable. Do we necessarily want a tribunal determining which particular claims are legitimate and which are not? I have said this before about issues of automatic enrolment. I think the AEC in Australia has a fine reputation. I do not want to see the AEC drawn further into political debate. If we say there is going to be any role for the AEC in determining truth in political advertising, the AEC will then lose some of its quite legitimate sheen as an independent agency that runs elections. Its conduct will then become the subject of political debate in the hottest environment possible: the midst of a federal election campaign. Quite frankly, that is not something that I think we should aspire for the AEC to do. The AEC is looked at around the world. Do we want to see our com­mission—I am not trying to necessarily paint this as the ultimate outcome, but it is a possible outcome—being looked at in the context of the way we might look at the conduct of some elections in other countries, where the agencies that run them are seen to be players in the debate, where the completely objective enforcement of the rules is not something that is alleged by one side or the other to be done unfairly? If we draw the AEC into ruling which claims are legitimate and which claims are not then I put to you that that is absolutely inevitable, and I do not think that is something we should aspire to.

Whether or not the Greens make a claim about a policy on climate change leading to the sea levels rising 50 meters in 10 years, whether or not the Labor Party makes a claim about the impact of Work Choices or whether we make a claim about the level of debt and its impact upon future Australians, I do not want those things to be determined legally. They are not questions that should be determined as if there is an absolute truth. Whether or not we used a question mark, a comma or an exclamation mark in the appropriate place, whether the footnote was big enough, the conduct of our elections will come down to legal technicalities and whether or not we have qualified a statement properly. Does anyone think we need political debate in this country to be more qualified, that we need to have fewer statements that are short, sharp and active?

The problem is that many of the statements we make in political campaigns are conclusions we have drawn from the evidence. The reason I sit in a different part of the chamber from where Senator Ludlam, Senator Xenophon and Senator Feeney sit is that we draw different conclusions from the evidence before us. That is political debate. So, on a philosophical or principled level, I think that we will be drawing the AEC in, potentially risking its reputation and trying to apply a legal test to a situation that we consciously give to the people to determine. If it came to referenda after these amendments were passed, Senator Xenophon, I think the situation would be even more risky, because if we go back through 100 years of debate over referenda and consider the effect of changing half a dozen words in the Constitution I venture to say that I, as a relatively well-known fed­eralist, would draw very different conclusions to the conclusions that other people in this chamber would draw.

Did anyone think in 1944, when we added a few words in the Constitution to deal with social security and benefits for students, that we would necessarily have said that in 60 or 70 years the Commonwealth will be the sole funder and regulator of universities in this country? Let us go back to 1944. I do not think we would then have been able to predict the future well enough to be able to say: 'There's no basis for you to make that allegation. There's no basis whatsoever for you to come to that conclusion. That's misleading people about the impact of this particular referendum.' Yet that is where we are today. I am not saying I would have made that prediction—I do not have that level of foresight on all things—but the point there is that that is something for the people to determine; it is not something for lawyers to determine and it is not something for the front pages of the newspapers of our country or for the television news to be leading with every night.

Do we really want our election campaigns to be accompanied by 'In the latest hearing before the AEC about the latest ad that the Labor Party or Liberal Party put up against one another, the finding has been as follows'? I say to you that I think they will if these amendments are passed. Senator Ludlam, I know the Greens have long campaigned on this, but I am a big fan of the bumper stickers that say 'A vote for the Greens is a vote for Labor'. Would you allege that that is misleading people? I know some Greens who have said to me, 'That's misleading.' I say it is not.

Senator Ludlam interjecting—

Are you going to seek to ban that from political debate? If it is misleading people and we have clauses such as this in the Electoral Act, what will happen is that those claims will be subject to some sort of adjudication by someone other than the people—that is, the people at the ballot box—whom we intend them to be subject to.

While I do understand that some who propose or support these amendments are motivated by the right reasons, I respectfully submit that they do not understand the consequences. The consequences will be in the conduct of political debate, which will lead to even more qualified language, more qualified statements and more jargon that our people can understand less than they can understand today's debate. Also, institutions which run our elections very effectively will potentially be drawn into political debate, and their reputations may be tarnished. So in a broader sense I think it is important to outline why there are some philosophical objections to the proposed amendments.