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This is a Bill, not an Act. For current law, see the Acts databases.
2022
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Commonwealth Electoral Amendment
(Stop the Lies) Bill 2022
No. , 2022
(Ms Steggall)
A Bill for an Act to amend the Commonwealth
Electoral Act 1918, and for related purposes
No. , 2022
Commonwealth Electoral Amendment (Stop the Lies) Bill 2022
i
Contents
1
Short title .............................................................................. 1
2
Commencement .................................................................... 1
3
Schedules .............................................................................. 2
Schedule 1--Amendments
3
Commonwealth Electoral Act 1918
3
No. , 2022
Commonwealth Electoral Amendment (Stop the Lies) Bill 2022
1
A Bill for an Act to amend the Commonwealth
1
Electoral Act 1918, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the
Commonwealth Electoral Amendment (Stop the
5
Lies) Act 2022
.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Commonwealth Electoral Amendment (Stop the Lies) Bill 2022
No. , 2022
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The 28th day after this Act receives the
Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments
Schedule 1
No. , 2022
Commonwealth Electoral Amendment (Stop the Lies) Bill 2022
3
Schedule 1--Amendments
1
2
Commonwealth Electoral Act 1918
3
1 After Part XXA
4
Insert:
5
Part XXB--Misleading and deceptive political
6
advertising
7
8
321J Definitions
9
In this Part:
10
election participant
: see subsection 321L(3).
11
engage in conduct
means:
12
(a) do an act; or
13
(b) omit to perform an act.
14
publish
means communicate by any means, including by print,
15
radio, television, internet or telephone.
16
referendum
has the same meaning as in the
Referendum
17
(Machinery Provisions) Act 1984
.
18
referendum matter
: see section 321K.
19
321K Meaning of referendum matter
20
(1)
Referendum matter
means matter communicated or intended to be
21
communicated for the dominant purpose of influencing the way
22
electors vote in a referendum, including by promoting or opposing:
23
(a) any of the referendum options; or
24
(b) a person or entity associated with any of the referendum
25
options.
26
Note:
Communications whose dominant purpose is to educate their audience
27
on a public policy issue, or to raise awareness of, or encourage debate
28
Schedule 1
Amendments
4
Commonwealth Electoral Amendment (Stop the Lies) Bill 2022
No. , 2022
on, a public policy issue, are not for the dominant purpose of
1
influencing the way electors vote in a referendum (as there can be
2
only one dominant purpose for any given communication).
3
(2) For the purposes of subsection (1), each creation, recreation,
4
communication or recommunication of matter is to be treated
5
separately for the purposes of determining whether matter is
6
referendum matter.
7
Note:
For example, matter that is covered by an exception under
8
subsection (5) when originally communicated may become
9
referendum matter if recommunicated for the dominant purpose
10
referred to in subsection (1).
11
Rebuttable presumption for matter that expressly promotes or
12
opposes referendum options etc.
13
(3) Without limiting subsection (1), the dominant purpose of the
14
communication or intended communication of matter that
15
expressly promotes or opposes:
16
(a) any of the referendum options; or
17
(b) a person or entity associated with any of the referendum
18
options;
19
is presumed to be the purpose referred to in subsection (1), unless
20
the contrary is proved.
21
Matters to be taken into account
22
(4) Without limiting subsection (1), the following matters must be
23
taken into account in determining the dominant purpose of the
24
communication or intended communication of matter:
25
(a) whether the communication or intended communication is or
26
would be to the public or a section of the public;
27
(b) whether the matter contains an express or implicit comment
28
on any of the referendum options or any person or entity
29
associated with any of the referendum options;
30
(c) whether the communication or intended communication is or
31
would be received by electors near a polling place;
32
(d) how soon a referendum is to be held after the creation or
33
communication of the matter;
34
(e) whether the communication or intended communication is or
35
would be unsolicited.
36
Amendments
Schedule 1
No. , 2022
Commonwealth Electoral Amendment (Stop the Lies) Bill 2022
5
Exceptions
1
(5) Despite subsections (1) and (3), matter is not
referendum matter
if
2
the communication or intended communication of the matter:
3
(a) forms or would form part of the reporting of news, the
4
presenting of current affairs or any genuine editorial content
5
in news media; or
6
(b) is or would be by a person for a dominant purpose that is a
7
satirical, academic, educative or artistic purpose, taking into
8
account any relevant consideration including the dominant
9
purpose or any other communication of matter by the person;
10
or
11
(c) is or would be a private communication by a person to
12
another person who is known to the first person; or
13
(d) is or would be by or to a person who is a Commonwealth
14
public official (within the meaning of the
Criminal Code
) in
15
that person's capacity as such an official; or
16
(e) is or would be a private communication to a political entity
17
(who is not a Commonwealth public official) in relation to
18
public policy or public administration; or
19
(f) occurs or would occur in the House of Representatives or the
20
Senate, or is or would be to a parliamentary committee.
21
Note:
A person who wishes to rely on this subsection bears an evidential
22
burden in relation to the matters in this subsection (see
23
subsection 13.3(3) of the
Criminal Code
).
24
321L Electoral matter or referendum matter that is misleading or
25
deceptive etc.
26
Electoral matter or referendum matter that is misleading or
27
deceptive etc.
28
(1) A person must not print, publish or distribute, or cause, permit or
29
authorise to be printed, published or distributed, electoral matter or
30
referendum matter if the matter contains a statement in relation to a
31
matter of fact (including an implied statement) that is:
32
(a) misleading or deceptive to a material extent; or
33
(b) likely to mislead or deceive to a material extent.
34
Example 1: Electoral matter that states that a candidate in an election made a
35
statement that the candidate did not make.
36
Schedule 1
Amendments
6
Commonwealth Electoral Amendment (Stop the Lies) Bill 2022
No. , 2022
Example 2: Referendum matter that states that a person or entity associated with
1
any of the referendum options made a statement that that person or
2
entity did not make.
3
Note:
See also section 329 (Misleading or deceptive publications etc. in
4
relation to the casting of a vote) of this Act and section 122
5
(Misleading or deceptive publications etc.) of the
Referendum
6
(Machinery Provisions) Act 1984
.
7
Impersonating or passing-off
8
(2) Without limiting subsection (1), a person must not engage in
9
conduct if:
10
(a) the conduct is likely to cause another person to believe any of
11
the following in relation to electoral matter or referendum
12
matter that is printed, published or distributed:
13
(i) the electoral matter is printed, published or distributed
14
by a particular election participant;
15
(ii) the referendum matter is printed, published or
16
distributed by a particular person or entity associated
17
with any of the referendum options;
18
(iii) a particular election participant caused, permitted or
19
authorised the electoral matter to be printed, published
20
or distributed;
21
(iv) a particular person or entity associated with any of the
22
referendum options authorised the referendum matter to
23
be printed, published or distributed;
24
(v) the electoral matter is authorised by a particular election
25
participant;
26
(vi) the referendum matter is authorised by a particular
27
person or entity associated with any of the referendum
28
options; and
29
(b) that belief would be incorrect.
30
Example 1: Electoral matter that purports to have been published by the campaign
31
of a candidate in an election but is actually published by someone
32
opposed to the candidate.
33
Example 2: A pre-recorded telephone message that consists of a voice recording
34
of someone impersonating a candidate in an election.
35
Example 3: Referendum matter that purports to have been published by a person
36
or entity associated with any of the referendum options but is actually
37
published by someone opposed to that person or entity or opposed to
38
one or more of the referendum options.
39
Amendments
Schedule 1
No. , 2022
Commonwealth Electoral Amendment (Stop the Lies) Bill 2022
7
Example 4: A pre-recorded telephone message that consists of a voice recording
1
of someone impersonating a person or entity associated with any of
2
the referendum options.
3
(3) Each of the following is an
election participant
:
4
(a) a political entity;
5
(b) a significant third party (within the meaning of section 287);
6
(c) a member or official of the Electoral Commission (see
7
section 6).
8
321M Complaints
9
Any person may make a written complaint to the Electoral
10
Commissioner that another person has breached section 321L.
11
321N Powers of Electoral Commissioner
12
Electoral Commissioner may investigate possible breaches
13
(1) The Electoral Commissioner may investigate (whether in response
14
to a complaint made under section 321M or on the Electoral
15
Commissioner's own initiative) a possible breach of section 321L
16
if the Commissioner is satisfied on reasonable grounds that the
17
investigation would be in the public interest.
18
Electoral Commissioner may request person to end breaches
19
(2) If the Electoral Commissioner is satisfied on reasonable grounds
20
(whether or not following an investigation under subsection (1) of
21
this section) that a person has breached section 321L, the Electoral
22
Commissioner may:
23
(a) ask the person not to print, publish or distribute the relevant
24
electoral matter or referendum matter, or not to cause, permit
25
or authorise the relevant electoral matter or referendum
26
matter to be printed, published or distributed; or
27
(b) ask the person to publish, or cause to be published, a
28
retraction or correction in specified terms and in a specified
29
way; or
30
(c) publish a correction.
31
Schedule 1
Amendments
8
Commonwealth Electoral Amendment (Stop the Lies) Bill 2022
No. , 2022
321P Powers of courts
1
(1) On application by:
2
(a) the Electoral Commissioner; or
3
(b) a person who has made a complaint under section 321M;
4
a court of competent jurisdiction that is satisfied on reasonable
5
grounds that a person has contravened section 321L may order the
6
person:
7
(c) not to print, publish or distribute the relevant electoral matter
8
or referendum matter, or not to cause, permit or authorise the
9
relevant electoral matter or referendum matter to be printed,
10
published or distributed; or
11
(d) to publish, or cause to be published, a retraction or correction
12
in specified terms and in a specified way.
13
(2) The Electoral Commissioner must not make an application under
14
paragraph (1)(a) in relation to a contravention of section 321L
15
unless the Electoral Commissioner has made a request under
16
subsection 321N(2) in relation to the contravention.
17
(3) Without limiting the powers of a court in dealing with an
18
application made under paragraph (1)(b), the court may dismiss
19
such an application if the application:
20
(a) is frivolous, vexatious, misconceived or lacking in substance;
21
or
22
(b) has no reasonable prospects of success; or
23
(c) is otherwise an abuse of the process of the court.
24
321Q Offence
25
(1) A person commits an offence if:
26
(a) the person is subject to a requirement under section 321L;
27
and
28
(b) the person engages in conduct; and
29
(c) the person's conduct breaches the requirement.
30
Penalty: 50 penalty units.
31
(2) In a prosecution of a person for an offence against subsection (1), it
32
is a defence if the defendant:
33
Amendments
Schedule 1
No. , 2022
Commonwealth Electoral Amendment (Stop the Lies) Bill 2022
9
(a) took no part in determining the content of the electoral matter
1
or referendum matter to which the offence relates; and
2
(b) could not reasonably be expected to have known that the
3
statement to which the offence relates was misleading or
4
deceptive, or was likely to mislead or deceive.
5
Note:
The defendant bears an evidential burden in relation to the matters
6
mentioned in this subsection (see subsection 13.3(3) of the
Criminal
7
Code
).
8
(3) If a person is found guilty of an offence against subsection (1) of
9
this section, the court must take the person's response to any
10
relevant request under subsection 321N(2) into account in deciding
11
the penalty for the offence.
12
(4) Section 15.2 of the
Criminal Code
(extended geographical
13
jurisdiction--category B) applies to an offence against
14
subsection (1) of this section.
15
2 Section 329 (at the end of the heading)
16
Add, "
in relation to the casting of a vote
".
17
3 After subsection 383(10)
18
Insert:
19
This section does not apply in relation to contraventions of
20
Part XXB
21
(10A) This section does not apply in relation to a contravention of, or an
22
offence against, Part XXB (Misleading and deceptive political
23
advertising).
24