|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Parliamentary Joint Committee on Human Rights |
2.1 The committee considers a response to matters raised previously by the committee.
2.2 Correspondence relating to these matters is available on the committee's website.[1]
|
Purpose
|
The bill seeks to amend the Commonwealth Electoral Act 1918 and the
Referendum (Machinery Provisions) Act 1984 to prohibit the authorisation
of certain electoral or referendum matters containing false or misleading
material. The bill would
establish an Electoral Communications Panel to
investigate alleged contraventions and require electoral and referendum matters
that
have been substantially or entirely created or modified using digital
technology (including artificial intelligence) to carry a statement
to that
effect
The bill seeks to make other amendments to repeal (from 1 July 2026) the
requirements for licensed broadcasters and the Special Broadcasting
Service to
not broadcast election or referendum advertising in the last three days of
voting in an election or referendum
|
|
Portfolio
|
Finance
|
|
Introduced
|
House of Representatives, 18 November 2024
|
|
Rights
|
Freedom of expression; participation in public affairs; privacy
|
2.3 This bill seeks to amend the Commonwealth Electoral Act 1918 (Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (Referendum Act) to prohibit the authorisation of certain electoral matters (or referendum matters), where they include content which is ‘inaccurate and misleading to a material extent’ during electoral and referendum periods.[3] An ‘electoral matter’ refers to a matter communicated or intended to be communicated for the dominant purpose of influencing the way electors vote in a federal election (including through advertisements, leaflets, pamphlets, flyers, posters or how-to-vote cards).[4] Breach of these requirements would be subject to civil penalties. These penalties would not apply where the communication is paid for by an allowance provided for under the Parliamentary Business Resources Act 2017, or where the communication was authorised by a Commonwealth department.[5]
2.4 The bill would establish an Electoral Communications Panel (an independent statutory structure within the Australian Electoral Commission) to investigate alleged contraventions of these requirements.[6] The panel would be able to undertake investigations, publish its decisions, and request that remedial action be undertaken. The panel could apply to the Federal Court of Australia for an injunction in relation to a possible contravention.
2.5 Regulating the publication of materials which include false or misleading information about electoral candidates may promote the right to privacy and reputation and the right to take part in public affairs.
2.6 The right to privacy and reputation prohibits arbitrary and unlawful interferences with an individual's privacy, family, correspondence or home.[7] The right to take part in public affairs includes guarantees of the right of Australian citizens to stand for public office, to vote in elections and to have access to positions in public service.[8] Given the importance of free speech and protest to the conduct of public affairs in a free and open democracy, the realisation of the right to take part in public affairs depends on the protection of other key rights, such as freedom of expression, association and assembly.
2.7 Restricting the things which people can communicate regarding elections and referendums engages and limits the right to freedom of expression. The right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds, either orally, in writing or print, in the form of art, or through any other media of an individual's choice.[9] It may be subject to limitations that are necessary to protect the rights or reputations of others, national security, public order, public health or morals. Such limitations must be prescribed by law, be rationally connected to the objective of the measures and be proportionate.[10] It appears that the proposed measures would likely constitute a proportionate limit on the right to freedom of expression.
2.8 Further, the publication of decisions by the panel (that a person has authorised an electoral advertisement or referendum material containing inaccurate/misleading information) may engage and limit the right to privacy. The right to privacy may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective. In this regard, it is not clear what information may be published as part of a ‘decision’, and in particular what personal information the panel could publish. It is unclear why the bill does not particularise the information which the panel may and may not publish. While the panel would not be required to publish a decision where it has decided not to pursue a potential contravention, it is unclear whether, if the panel’s decision was reversed on review, the panel would be required to remove the published notice of decision or take other remedial action.
2.9 The committee noted that this bill would regulate the publication of electoral and referendum matters which include content which is inaccurate or misleading to a material extent and may promote the right to participate in public affairs and the right to privacy and reputation.
2.10 The committee noted that restricting what people can communicate regarding elections and referendums engages and limits the right to freedom of expression, and that the publication of decisions by the panel may engage and limit the right to privacy.
2.11 The committee considered further information was required to assess the compatibility of this measure with these rights, and as such sought the minister's advice.
2.12 The full initial analysis is set out in Report 11 of 2024.
a) Why authorisable electoral or referendum matter paid for by an allowance provided for under the Parliamentary Business Resources Act 2017, or where the communication was authorised by a Commonwealth department, would not be subject to the proposed prohibitions
The amendments are designed to impact on the right to take part in public affairs only insofar as the right relates to conducting paid electoral advertising and promotional materials during the period of an election or referendum.
Consistent with existing provisions in the Electoral Act, the amendments are not intended to impact upon any other kind of communication that relates to the right to take part in public affairs, such as the conduct of Parliamentary business or communications by the Commonwealth.
b) What an 'investigation' process undertaken by the Electoral Communications Panel would entail and whether the person who has authorised the relevant content would be able to make submissions regarding the content as part of that process
The Bill promotes fair hearing rights by ensuring that investigations will be conducted by an independent and impartial decision-making body with relevant experience in procedural fairness. The conduct of investigations will be a matter for the Electoral Communications Panel to determine once it has been established.
The Bill does not prohibit on the authoriser of the relevant matter making a submission to the Decision Panel, nor does the Bill prevent the Decision Panel from conducting public hearings. Instead, the Decision Panel may consult or request information or advice from any person or entity including the authoriser, and the Chair may require information from any person or entity whom the Chair has reason to believe has relevant information.
c) What information the Decision Panel may publish as part of a 'decision', and what personal information the Decision Panel could publish
The Bill requires the Decision Panel to publish its reasons for decision (section 321RC). The Decision Panel, as a part of the Australian Electoral Commission, will be subject to the Australian Privacy Principles (APPs) as set out in the Privacy Act 1988. Information disclosed to the Electoral Communications Panel under the Bill is collected and used consistently with the APPs. Any publication of personal information by the Decision Panel will be subject to the standards, rights, and obligations set out by the APPs.
d) Why the Electoral Communications Bill does not particularise the personal or identifying information which the Panel may and may not publish
Any personal or identifying information that is disclosed to the Panel must be used and published in accordance with the APPs.
e) Whether, if the Panel's decision was reversed on review, the Panel would be required to remove the published notice of decision or take other remedial action
As outlined in the above the publication of Panel decisions will be subject to the standards, rights, and obligations set out by the APPs. This includes the requirements regarding the quality and correction of personal information held by the Panel (APPs 10 and 13).
Further, decisions and publications by a Decision Panel will be subject to the ordinary principles of decision-making under administrative law and to the directions of the Court conducting the judicial review.
2.14 With respect to the right to take part in public affairs, the preliminary analysis noted that no information was provided as to why the prohibition on authorising certain electoral matters (or referendum matters) during electoral and referendum periods would not apply where the communication is paid for by an allowance provided for under the Parliamentary Business Resources Act 2017 (which provides for parliamentarians’ remuneration, expenses, allowances and other public resources), or where the communication was authorised by a Commonwealth department. The minister stated that the amendments are designed to impact on the right to take part in public affairs only insofar as the right relates to conducting paid electoral advertising and promotional materials during the period of an election or referendum and are not intended to impact upon any other kind of communication that relates to the right to take part in public affairs, such as the conduct of Parliamentary business or communications by the Commonwealth. However, it remains unclear why these kinds of communications are excluded from the penalties in the bill, as including all electoral matters which include content which is inaccurate and misleading to a material extent would appear to promote (and, equally, would not appear to limit) the right to take part in public affairs.
2.15 As to the proportionality of the measure to publish decisions by the panel and its impact on the right to privacy, the minister stated that investigations will be conducted by an independent and impartial decision-making body who may request information or advice from any person or entity including the authoriser of the relevant matter, and that the conduct of investigations will be a matter for the panel to determine once it has been established. Further, the minister stated that, as the panel would be required to publish reasons for its decision, information collected and published which includes personal information would be subject to the Australian Privacy Principles (APPs) as set out in the Privacy Act 1988 (Privacy Act). As to any requirement to correct inaccurate information that had been published, the minister stated that APP requirements regarding the quality and correction of personal information held by the panel would apply. These requirements would require an entity to take ‘reasonable steps’ to ensure that personal information it uses and discloses is accurate, up to date, and complete,[12] and to take reasonable steps to correct personal information.[13] The minister further stated that decisions and publications by the panel will be subject to the ordinary principles of decision-making under administrative law and to the directions of the court conducting judicial review.
2.16 While compliance with the Privacy Act and APPs may offer some safeguard value, it is not a complete answer to concerns about interference with the right to privacy for the purposes of international human rights law. The APPs contain a number of exceptions to the prohibition on use or disclosure of personal information for a secondary purpose, including where its use or disclosure is authorised under an Australian law,[14] which may be a broader exception than permitted in international human rights law. There is also a general exemption in the APPs regarding the disclosure of personal information for a secondary purpose where it is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body.[15] Consequently, there may be a risk that, depending on the information collected and published by the panel in practice, this measure may impermissibly limit the right to privacy.
2.17 The committee thanks the minister for this response. The committee notes that it was received after the deadline by which the committee had requested it.
2.18 The committee notes that this bill would regulate the publication of electoral and referendum matters which include content which is inaccurate or misleading to a material extent and may promote the right to participate in public affairs, and the right to privacy and reputation.
2.19 However, it remains unclear to the committee why the prohibition on authorising certain electoral matters (or referendum matters) during electoral and referendum periods would not apply where the communication is paid for by an allowance provided for under the Parliamentary Business Resources Act 2017 (which provides for parliamentarians’ remuneration, expenses, allowances and other public resources), or where the communication was authorised by a Commonwealth department. The committee considers that prohibiting all electoral matters which include content which is inaccurate and misleading to a material extent would appear to promote (and, equally, would not appear to limit) the right to take part in public affairs.
2.20 Further, the committee considers that the publication of decisions by the Electoral Communications Panel (that a person has authorised an electoral advertisement or referendum material containing inaccurate and misleading information) may engage and limit the right to privacy. The committee considers it remains unclear whether there are adequate safeguards in place to protect the right to privacy of persons who have authorised electoral content containing inaccurate and misleading information. In particular, the committee considers that it is unclear: what an ‘investigation’ may entail; what information the Electoral Communications Panel may publish as part of a ‘decision’; what personal information the panel could publish; and whether, if the panel’s decision was reversed on review, the panel would be required to remove the published notice of decision or take other remedial action. The committee considers there is a risk that the measure would constitute an impermissible limit on the right to privacy.
|
Suggested action
2.21 The committee considers the proportionality of this measure may be
assisted were the bill amended to provide for additional privacy
safeguards, for
example to specify what information the Electoral Communications Panel may or
may not publish and a process to remove
the published notice or take other
remedial action if the panel’s decision was reversed on review.
|
2.22 The committee draws these human rights concerns to the attention of the minister and the Parliament.
[1] See https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports
[2] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Electoral Legislation Amendment (Electoral Communications) Bill 2024, Report 1 of 2025; [2023] AUPJCHR 8.
[3] Schedule 1, item 27, proposed Part XXB – Electoral Communications (Commonwealth Electoral Act 1918) and Schedule 2, item 23, proposed Part IXA – Referendum Communications (Referendum (Machinery Provisions) Act 1984).
[4] Commonwealth Electoral Act 1918, section 4AA. A referendum matter refers to matter whose dominant purpose is to influence the way electors vote at a referendum. See Referendum (Machinery Provisions) Act 1984, section 3AA.
[5] Schedule 1, item 27, proposed subsection 321L(3) (Commonwealth Electoral Act 1918) and schedule 2, item 23, proposed subsection 112D(3) (Referendum (Machinery Provisions) Act 1984).
[6] Schedule 1, item 27, proposed section 321Q (Commonwealth Electoral Act 1918) and schedule 2, item 23, proposed section 112H (Referendum (Machinery Provisions) Act 1984).
[7] UN Human Rights Committee, General Comment No. 16: Article 17 (1988) [3]-[4].
[8] UN Human Rights Council, General Comment No.25: Article 25, Right to participate in public affairs, voting rights and the right of equal access to public service (1996).
[9] International Covenant on Civil and Political Rights, article 19(2).
[10] UN Human Rights Committee, General Comment No.34: Article 19: Freedoms of opinion and expression (2011) [21]-[36].
[11] The minister's response to the committee's inquiries was received on 20 January 2025. This is an extract of the response. The response is available in full on the committee's webpage.
[12] APP 10.
[13] APP 13.
[14] APP 9; APP 6.2(b).
[15] APP 6.2(e).
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AUPJCHR/2025/8.html