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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COMMONWEALTH ELECTORAL AMENDMENT (VOTER
PROTECTIONS IN POLITICAL ADVERTISING) BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by the authority of
Zali Steggall OAM MP)
Commonwealth Electoral Amendment (Voter
Protections in Political Advertising) Bill 2023
General Outline
1 This Bill amends the Commonwealth Electoral Act 1918 to prohibit
misleading or deceptive electoral or referendum matter.1
2 The Bill prohibits electoral or referendum matter that contains a statement in
relation to a matter of fact that is misleading or deceptive to a material extent; or
is likely to mislead or deceive to a material extent.
Example 1: Electoral matter that states that a candidate in an election made a
statement that the candidate did not make.
Example 2: Referendum matter that misrepresents the cost of a referendum option.
3 The Bill also prohibits persons or bodies corporate from deceptively
impersonating, or falsely attributing material to, a person, candidate, campaigner,
party, or entity.
Example 1: Electoral matter that purports to have been published by the campaign of
a candidate in an election but is published by someone else.
Example 2: A telephone message that includes a voice recording of someone
impersonating a candidate in an election.
4 The Bill invests the Electoral Commissioner with the power to investigate
possible breaches, order retractions, publish corrections, and pursue a complaint
through the courts. The Bill also allows a person to refer a possible breach to the
Electoral Commissioner and the courts, but provides that any application that is
frivolous, vexatious, misconceived, or lacking in substance may be dismissed.
5 A natural person found to commit an offence may receive a maximum
pecuniary penalty of 50 penalty units.2 A body corporate found to commit an
offence may receive a maximum pecuniary penalty of 250 penalty units, as per s
4B(3) of the Commonwealth Crimes Act 1914.
Purpose
6 The Bill aims to protect Australia's electoral processes from misinformation
and disinformation.
1
By 'electoral matter or referendum matter', the Bill means material communicated or intended to
be communicated for the dominant purpose of influencing the way electors vote in an election or
referendum. See s 321K of the Bill for a full definition of the term.
2
A penalty unit is the standard amount of money or period of imprisonment used to determine
penalties for a breach of the law. A fine is calculated by multiplying the value of a penalty unit,
which is indexed to inflation, by the number of units prescribed for the offence.
2
7 The Bill aims to do so by regulating misleading or deceptive electoral or
referendum matter in a way that is effective, constitutionally sound, timely, and
enforceable, without chilling political speech or producing other unwanted
consequences.3
8 In so doing, the Bill aims to fill a legislative gap and vulnerability in
Australia's electoral law. Section 329(1) of the Commonwealth Electoral Act
1918 prohibits 'any matter or thing that is likely to mislead or deceive an elector
in relation to the casting of a vote'. In Evans v Crichton-Browne (1981), the High
Court interpreted s 329(1) to apply only to the moment of preference
expression--that is, the mechanical act of casting a vote.4 This Bill extends
protections against misleading or deceptive matter during the crucial preference
formation stage--that is, during the formation of an elector's preferences about
who or what to vote for.
9 Australia has a tradition of democratic innovation.5 This Bill presents
another opportunity to pioneer legislation that safeguards the future of Australia's
democracy.
Background to the problem
10 Misinformation and disinformation are related but distinct phenomena.6
Where misinformation is the 'inadvertent or unintentional' distribution of false
information, disinformation is the 'subset of misinformation that is deliberately
propagated'.7 The question of intent thus differentiates misinformation from
disinformation.
11 Misinformation and disinformation have created what many scholars call
'post-truth' politics--a politics where truth has lost salience to falsehoods and
lies.8 'Post-truth' politics rose to prominence in the Anglosphere during the 2016
United States presidential election campaign when foreign actors waged a
massive, coordinated disinformation attack.9 For example, in its post-election
review, Twitter identified more than 50,000 automated accounts that spread false
3
Hill, L., Baltutis, R., & Douglass, M. (2022) How and Why to Regulate False Political
Advertising. Palgrave Macmillan.
4
Evans v Crichton-Browne (1981) 147 CLR 169.
5
Wright, C. (2018) You Daughters of Freedom: The Australians Who Won the Vote and Inspired
the World. Text; Brett, J. (2019) From Secret Ballot to Democracy Sausage. Text.
6
Tham, J., & Ewing, K. D. (2021) Free speech and elections. In A. Stone and F. Schauer (eds.),
The Oxford Handbook of Freedom of Speech. Oxford University Press, 213, 327.
7
Guess, A. M., & Lyons, B. A. (2020) Misinformation, disinformation, and online propaganda. In
N. Persily & J. A. Tucker (eds.), Social media and democracy: The state of the field, prospects for
reform. Cambridge University Press, 10, 11.
8
Wardle, C., & Derakhshan, H. (2017) Information disorder: Toward an inter-disciplinary
framework for research and policy making. Council of Europe Report, viewed 10 November 2022,
https://shorensteincenter.org/information-disorder-framework-for-research-and-policymaking/
9
Allcot, H., & Gentzkow, M. (2017) Social media and fake news in the 2016 election. Journal of
Economic Perspectives, 31(4), 211-236.
3
information about the election.10 The disinformation campaign polarised public
discourse, destabilised American politics, and swayed the election outcome
towards Donald Trump.11
12 Disinformation defined Donald Trump's presidency. According to the
Washington Post's fact-checking service, President Trump uttered over 30,000
false and misleading claims during his term.12 In the years following his election,
'fake news' was declared word of the year by Macquarie Dictionary,13 Collins
Dictionary,14 and the American Dialect Society.15 In addition to 'fake news', other
Orwellian sophistries that became normalised included Kellyanne Conway's
phrase, 'alternative facts' and Rudy Giuliani's claim that 'truth isn't truth'.16
13 A further challenge to truth in politics is the 'deep fake'.17 A deep fake is a
video or voice recording of a person in which their face, body, or voice has been
digitally altered to impersonate someone else. Deep fakes can be used for
malicious ends to spread false information about election participants. 18 8F
10
Twitter (2018, January 19) Update on Twitter's review of the 2016 US election. Twitter, viewed
10 November 2022, https://blog.twitter.com/official/en_us/topics/company/2018/2016-election-
update.html
11
Napoli, M. (2018) What if more speech is no longer the solution? First Amendment theory
meets fake news and the filter bubble. Federal Communications Law Journal, 70(1), 55-104;
Gunther, R., Nisbet, E., & Beck P. (2018, February 15) Trump may owe his 2016 victory to "fake
news," new study suggests'. The Conversation, viewed 10 November 2022,
https://theconversation.com/trump-may-owe-his-2016-victory-to-fake-news-new-study-suggests-
91538; Summers, T. (2018, July 28) How the Russian government used disinformation and cyber
warfare in 2016 election - an ethical hacker explains. The Conversation, viewed 10 November
2022, https://theconversation.com/how-the-russian-government-used-disinformation-and-cyber-
warfare-in-2016-election-an-ethical-hacker-explains-99989
12
Kessler, G., Risso, S., & Kelly, M. (2021, January 24) Trump's false or misleading claims total
30473 over 4 years. The Washington Post, viewed 10 November 2022,
https://www.washingtonpost.com/politics/2021/01/24/ trumps-false-or-misleading-claims-total-
30573-over-four-years/
13
Hunt, E. (2017, January 25) 'Fake news' named word of the year by Macquarie Dictionary. The
Guardian, viewed 10 November 2022, https://www.theguardian.com/australia-
news/2017/jan/25/fake-news-named-word-of-the-year-by-macquarie-dictionary
14
Sauer, N. (2017, November 2) Collins Dictionary picks 'fake news' as word of the year'.
Politico, viewed 10 November 2022, https://www.politico.eu/article/collins-dictionary-picks-fake-
news-as-word-of-the-year/
15
American Dialect Society (2018, January 5) 'Fake news' is 2017 American Dialect Society
word of the year. American Dialect Society, viewed 10 November 2022,
https://www.americandialect.org/fake-news-is-2017-american-dialect-society-word-of-the-year
16
Bradner, E. (2021, January 23) Conway: Trump White House offered "alternative facts" on
crowd size. CNN, viewed 10 November 2022,
https://edition.cnn.com/2017/01/22/politics/kellyanne-conway-alternative-facts/index.html.
17
Puutio, A., & Timis, D. A. (2020, October 5) Deepfake democracy: Here's how modern
elecitons could be decided by fake news. World Economic Forum, viewed 10 November 2022,
https://www.weforum.org/agenda/2020/10/deepfake-democracy-could-modern-elections-fall-prey-
to-fiction/
18
Galston, W. A. (2020) Is seeing still believing? The deepfake challenge to truth in politics. The
Brookings Institute, viewed 11 November, https://www.brookings.edu/research/is-seeing-still-
believing-the-deepfake-challenge-to-truth-in-politics/#cancel
4
14 Worryingly, misinformation and disinformation are disrupting elections
around the world. According to Freedom House, misinformation and
disinformation undermined the elections of at least 17 countries in the year
following the 2016 United States presidential election, 'damaging citizens' ability
to choose their leaders based on factual news and authentic debate'.19
15 Australian politics has also suffered from misinformation and
disinformation. Examples of misleading or deceptive political advertising abound
in recent political history.20
(a) In the 2016 federal election, the Labor Party potentially eroded the
Liberal-National Coalition's parliamentary majority through its
'Mediscare' campaign, which falsely claimed that the Coalition sought to
privatise Medicare.21
(b) In the 2019 federal election, the Coalition's spurious claim that the Labor
Party sought to impose a 'death tax' harmed Labor's election prospects.22
(c) In the 2020 Queensland state election, the group, Advance Australia,
posted a deep fake of the Premier, Annastacia Palaszczuk, that was viewed
one million times.23
(d) In the 2022 federal election, candidates from One Nation, United Australia
Party, and other micro parties engaged in a 'dangerous' disinformation
campaign that made baseless claims of widespread electoral fraud.24
16 Referenda are particularly prone to misinformation and disinformation.
Internationally, the United Kingdom's vote to leave the European Union is a
19
Kelly, S., Tuong, M., Shahbaz, A., Earp, M., & White, J. (2017) Freedom on the Net 2017.
Freedom House. https://freedomhouse.org/sites/default/files/2020-
02/FOTN_2017_Final_compressed.pdf, 1.
20
For more examples, see also Browne, B. (2019) We can handle the truth. The Australia Institute,
https://australiainstitute.org.au/report/we-can-handle-the-truth-opportunities-for-truth-in-political-
advertising/; and Browne, B., and Shields, T. (2022) Fortifying Australia's Democracy -
Submission to the Joint Standing Committee on Electoral Matters inquiry into the 2022 federal
election. The Australia Institute, https://australiainstitute.org.au/report/fortifying-australian-
democracy/.
21
Elliot, A., & Manwaring, R. (2018) 'Mediscare!': Social issues. In A. Gaujia, P. Chen, J. Curtin
& J. Pietsch (eds.), Double disillusion: The 2016 Australian Federal Election, 549-569. ANU
Press.
22
Carson, A., Gibbons, A., & Phillips, J. B. (2021) Recursion theory and the 'death tax':
Investigating a fake news discourse in the 2019 Australian election. Journal of Language and
Politics, 20(5), 696-718.
23
This deep fake was labelled as such, so it was a relatively innocuous case of the technology.
Wilson, C. (2020, November 2) Australia's first deepfake political ad is here and it's extremely
cursed. Gizmodo, viewed 10 November 2022, https://www.gizmodo.com.au/2020/11/australias-
first-deepfake-political-ad-is-here-and-its-extremely-cursed/
24
Butler, J., & Martin, S. (2022, April 17) AEC alarmed at 'dangerous' voter fraud claims
spreading before Australian election. The Guardian, viewed 11 November 2022,
https://www.theguardian.com/australia-news/2022/apr/17/aec-alarmed-at-dangerous-voter-claims-
spreading-before-australian-election?CMP=oth_b-aplnews_d-3
5
recent example of where disinformation--and a lack of regulation on political
advertising--damaged the legitimacy of a referendum.25 More importantly, it is
also thought to have distorted preferences by fraudulently steering the outcome to
a 'No' vote.26
17 In his review of every Australian referendum, Scott Bennett surmises that 'a
great deal of exaggeration and distortion is standard fare'.27 According to
Professor Anne Twomey, '[s]care campaigns are effective even if there is little or
no truth behind them' because it is enough 'to plant doubt' for people to vote
no--a tactic Twomey notes was used prominently in the 1999 referendum on a
republic.28 For this reason, Professors Gabrielle Appleby and Lisa Hill
recommend that '[a]ny new truth in political advertising laws must extend to
referendums.'29
18 According to a Roy Morgan survey, over two-thirds of Australian adults
have been exposed to deceptive news items.30 Another study found that a quarter
of a sample of Australian adults had read stories that were 'completely made
up'.31 More recently, The Australia Institute's exit poll of the 2022 federal
election found that 73 per cent of Australians came across misleading political
advertisements during the election campaign.32 In all these cases, the true figure
may be higher, given that research shows that the ability of consumers to
distinguish fact from fiction is much lower than they realise.33
25
Renwick, A. and Palese, M. (2020) Tackling misinformation in referendums: Lessons from
anglophone democracies. In S. Baume, V. Boillet, & V. Martenet (eds.), Misinformation in
Referenda, 194-219. Routledge, 194.
26
Henkel, I. 2021. Destructive Storytelling: Disinformation and the Eurosceptic Myth that Shaped
Brexit. Palgrave Macmillan.
27
Bennett, S. (2003) The politics of constitutional amendment. Department of the Parliamentary
Library Research Paper No. 11 (2002-03) https://www.aph.gov.au/binaries/library/pubs/rp/2002-
03/03rp11.pdf, 20.
28
Twomey, A. (2022, May 27) Changing the Australian Constitution is not easy, but we need to
stop thinking it's impossible. The Conversation, viewed November 12,
https://theconversation.com/changing-the-australian-constitution-is-not-easy-but-we-need-to-stop-
thinking-its-impossible-183626
29
Appleby, G., & Hill, L. (2022, September 7) When the Indigenous voice referendum is upon us,
be wary of misinformation and scare campaigns. The Guardian, viewed November 12,
https://www.theguardian.com/australia-news/commentisfree/2022/sep/07/when-the-indigenous-
voice-referendum-is-upon-us-be-wary-of-misinformation-and-scare-campaigns
30
Hayden, S., & Bagga, N. (2018) Consumer use of news. Roy Morgan, viewed 12 November
2022, https://www.accc.gov.au/system/files/ACCC%20cons umer%20survey%20-
%20Consumer%20use%20of%20news%2C%20Roy%20M organ%20Research.pdf
31
Hughes, C. (2020, September 20) Share of consumers who are exposed to fake news in Australia
2018 by gender. Statista, viewed 12 November 2021,
https://www.statista.com/statistics/891818/australia-con sumer-exposure-to-fake-news-by-gender/
32
The Australia Institute. (2022) Exit poll - Misinformation in the federal election campaign. The
Australia Institute, viewed 12 November, https://australiainstitute.org.au/report/political-
advertising-on-social-media-platforms-during-the-2022-federal-election/
33
Lyons, B., Guess, A., Montgomery, J. M., Nyhan, B., & Reifler, J. (2021) Overconfidence in
news judgments is associated with false news susceptibility'. PNAS, 188(23), e2019527118.
6
19 To make matters worse, there are perverse incentives in the information
market to produce false political information.34 The political economy of social
media erodes 'both the media's willingness to supply "truth" in political
discourse, and the consumer's demand for it'.35 There is a lucrative market to
produce fake news for consumers who naturally seek information that confirms
their existing prejudices.36 The result is that misleading or deceptive information
is highly transmissible.37
20 The Australian Competition and Consumer Commission's Digital Platforms
Inquiry recommended better regulation of social media content to prevent
misinformation and disinformation. 38 The Australian Code of Practice on
4F
Disinformation and Misinformation (2021) provides for voluntary self-regulation
by social media companies of the accuracy of content distributed through their
platforms. 39 However, the Code does not address the matter of misleading or
5F
deceptive political advertising because there is no current legal mechanism to
underpin it in that regard. This Bill provides that mechanism.
Justification
21 Misleading or deceptive electoral or referendum matter requires legal
regulation because it is a 'democratic collective action problem'.40 The market
creates social and political harms that require state action to remedy.
22 The harms that false political advertising inflicts on democratic and
electoral processes are significant and serious.41 It can:
34
Braun, J. A., & Eklund, J. L. (2019) Fake news, real money: Ad tech platforms, profit-driven
hoaxes, and the business of journalism. Digital Journalism, 7 (1), 1-21.
35
Hill, L. (2022, August 23) Australians are tired of lies in political advertising. Here's how it can
be fixed. The Conversation, viewed 12 November, https://theconversation.com/australians-are-
tired-of-lies-in-political-advertising-heres-how-it-can-be-fixed-189043
36
Hughes, H. C., & Waismel-Manor, I. (2021) The Macedonian fake news industry and the 2016
US election. Political Science & Politics, 54(1), 19-23.
37
Buchanan, T. (2020) Why do people spread false information online? The effects of message
and viewer characteristics on self-reported likelihood of sharing social media disinformation. Plos
One, 15(10), 1-33.
38
Australian Competition and Consumer Commission (2019) Digital Platforms Inquiry Final
Report, Commonwealth of Australia, 280, https://www.accc.gov.au/publications/digital-platforms-
inquiry-final-report
39
DIGI. (2021) Australian Code of Practice on Disinformation and Misinformation.
https://digi.org.au/disinformation-code/
40
Hill et al, How and Why to Regulate False Political Advertising, 23.
41
See Hill et al, How and Why to Regulate False Political Advertising, 15-32; Browne, B. (2019)
We can handle the truth. The Australia Institute, https://australiainstitute.org.au/report/we-can-
handle-the-truth-opportunities-for-truth-in-political-advertising/; Rowbottom, J. (2012) Lies,
manipulation and elections--Controlling false campaign statements. Oxford Journal of Legal
Studies, 23(3), 507-535; Dardis, F. E., Shen, F., & Edwards, H. H. (2008) Effects of negative
political advertising on individual's cynicism and self-efficacy: The impact of ad type and message
exposures. Mass Communication and Society, 11(1), 24-42; Yoon, K., Pinkleton, B. E., & Ko, W.
(2005) Effects of negative political advertising on voting intention: An exploration of the roles of
involvement and source credibility in the development of voter cynicism. Journal of Marketing
Communications, 11(2), 95-112; Marshall, W. P. (2004) False campaign speech and the First
Amendment. University of Pennsylvania Law Review, 153(1), 285-323; Roose, J., & Khalil, L.
7
(a) Manipulate and mislead voters
(b) Prevent electors from understanding the true nature of policy debates
(c) Harm individuals by causing reputational injury
(d) Alter the course of elections
(e) Corrode the norms of political debate
(f) Raise the information cost of voting participation, particularly among
socioeconomically disadvantaged groups
(g) Aggravate low turnout among the disadvantaged and promote democratic
disengagement more generally
(h) Undermine trust in democracy, political institutions, and politicians
(i) Increase political, economic, and cultural polarisation
(j) Stoke populist or extremist sentiment
(k) Delegitimise electoral processes
(l) Undermine authentic electoral outcomes
(m) Threaten the peaceful transfer of power
(n) Lead to social instability and civil unrest
23 Prohibitions against misleading or deceptive political advertising are
popular in Australia, and the desire for legal reform has grown in recent years.42
Nationally representative polling by The Australia Institute indicates that 9 in 10
Australians want truth in political advertising laws, compared to five per cent who
do not. 43 Agreement is consistently high across gender, geography, and voting
0F
intentions. Further nationally representative polling by The Australia Institute in
(2020, September 11) Countering extremism and conspiracies in a global pandemic. ABC, viewed
12 November 2022, https://www.abc.net.au/religion/countering-extremism-and-conspiracies-in-a-
pandemic/12656734; Cantarella, M., Fraccariki, N., & Volpe, R. (2019) Does fake news affect
voting behaviour? DEMB Working Paper Series No. 26409; Henkel, I. (2021) Destructive
storytelling: Disinformation and the Eurosceptic myth that shaped Brexit. Palgrave Macmillan;
Jones-Jang, S. M., Kim, D. H., & Kenski, K. (2020) Perceptions of mis-or disinformation exposure
predict political cynicism: Evidence from a two-wave survey during the 2018 US midterm
elections. New Media and Society, 23(10), 3105-3125; Browne, B., Seth-Purdie, R., & Shields, T.
(2021) Identifying the problem: Voter ID laws a solution in search of a problem. The Australia
Institute, https://australiainstitute.org.au/report/identifying-the-problem/
42
Browne, B., and Shields, T. (2022) Fortifying Australia's Democracy - Submission to the Joint
Standing Committee on Electoral Matters inquiry into the 2022 federal election. The Australia
Institute, https://australiainstitute.org.au/report/fortifying-australian-democracy/, 13-20.
43
The Australia Institute. (2020, June 17) Polling - Truth in political advertising.
https://australiainstitute.org.au/report/polling-truth-in-political-advertising/; Browne,
8
June 2022 found that 9 in 10 Australians want truth in political advertising laws to
be legislated before the next federal election.44
24 In sum, prohibiting misleading or deceptive political advertising would be
an effective and popular way to protect Australia's democratic and electoral
processes.
Scope
25 The Bill applies at all times. The harms of misleading or deceptive electoral
or referendum matter are not limited to election campaigns; rather, they can occur
before and after writs are issued. The Bill therefore covers the entire period
between elections or referenda. This is necessary to effectively protect the election
information environment from misinformation and disinformation.
26 The Bill only applies to authorised electoral or referendum matter, or matter
that is required by the Commonwealth Electoral Act 1918 to be authorised. It does
not apply to unauthorised bad faith communication. The Bill therefore excludes a
significant source of misinformation and disinformation. This is necessary to
ensure the constitutionality of the Bill (see below).
27 The Bill only applies to misleading or deceptive statements in relation to a
matter of fact. It does not apply to expressions of opinion. This is also necessary
to ensure the constitutionality of the Bill (see below).
28 The Bill only applies to statements that are misleading or deceptive to a
material extent or are likely to mislead or deceive to a material extent (s 321L(1)).
This is intended to discourage cynical, vexatious, or trivial complaints or
litigation.
Liability
29 The Bill holds that promulgating false or misleading election information is
a criminal offence, rather than a civil matter, because of its significant social cost.
Private civil penalties imply that the problem is a private matter when it is in fact
'a matter of profound public importance.'45
30 The Bill thus follows the precedent established by analogous legislation in
South Australia and the Australian Capital Territory (ss 113 and 297A of the
respective electoral acts). This also follows the determination of Justice Isaacs in
Smith v Oldham: 'The vote of every elector is [ ... ] a matter of concern to the
whole Commonwealth and all are interested in endeavouring to secure, not merely
that the vote shall be formally recorded in accordance with the opinion which the
voter actually holds, free from intimidation, coercion and bribery, but that the
voter shall not be led by misrepresentation or concealment of any material
44
Arya, P. (2022) Political advertising on social media platforms during the 2022 federal election.
The Australia Institute, https://australiainstitute.org.au/report/political-advertising-on-social-
media-platforms-during-the- 2022-federal-election/
45
Hill et al (2022) How and Why to Regulate False Political Advertising, 125.
9
circumstance into forming and consequently registering a political judgment
different from that which he would have formed and registered had he known the
real circumstances.'46
Constitutionality
31 Any legal remedy to address misinformation and disinformation must not
violate the implied freedom of political communication guaranteed under the
Australian Constitution.47
32 Commonwealth jurisprudence provides conceptual space for a truth in
political advertising law that is constitutionally sound. The High Court has
insisted that the implied freedom of political communication in Australia is to be
understood, not as an individual right, but as a social condition. 48 2F
33 In Australian Capital Television Pty Ltd v Commonwealth (1992), Justice
Gaudron determined that the implied freedom of political communication is not
absolute. Rather, it 'is concerned with the free flow of information and ideas, it
neither involves the right to disseminate false and misleading material nor limits
any power that authorises law with respect to material answering that
description'. 49
1F
34 In Nationwide News Pty Ltd v Wills (1992), Justice Brennan determined that
political communication can be justifiably curtailed to allow citizens to enjoy
other democratic 'rights and privileges', including their right to access accurate
information to make reasoned electoral decisions.50
35 In Levy v Victoria (1997), Justice Dawson determined that '[f]ree elections
do not require the absence of regulation. Indeed, regulation of the electoral
process is necessary in order that it may operate effectively or at all. Not only that,
but some limitations upon freedom of communication are necessary to ensure the
proper working of any electoral system.'51
36 Importantly, s113 of the South Australian Electoral Act on which this Bill is
based has survived constitutional scrutiny in the South Australian Supreme Court
in Cameron v Becker.52
46
Smith v Oldham (1912) 15 CLR 355, 263 (Isaacs J)
47
Pender, K. (2022) Regulating truth and lies in political advertising: Implied freedom
considerations. Sydney Law Review, 44(1), 1.
48
O'Brien, D. (1995) Parliamentary privilege and the implied freedom of speech. Queensland Law
Society Journal 25(6). For specific cases, see Nationwide News Pty Ltd v Wills (1992) 177 CLR 1,
Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 and Stephens and Others v
West Australian Newspapers Limited (1994) 182 CLR 211. Also see Australian Capital Television
Pty Ltd v Commonwealth (1992) 177 CLR 106, 217 (Gaudron J)
49
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 217 (Gaudron J)
50
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 51 (Brennan J)
51
Levy v Victoria (1997) 189 CLR 579, 608 (Dawson J)
52
Cameron v Becker (1995) 64 SASR 238
10
Defence
37 The Bill provides a statutory defence where the defendant took no part in
determining the content of an impugned advertisement and could not reasonably
be expected to have known it was misleading or deceptive. Justice Olsson
recognised the purpose of a defence of this nature in Cameron v Becker, aptly
quoting Chief Justice Gleeson: 'it is not obvious to me that the public has an
interest in punishing people for honest and reasonable mistakes of fact'.53
38 The defence is necessary so that the law is appropriate and adapted to
advance its purpose without unduly burdening the freedom of political
communication recognised in the Australian Constitution. It recognises that
circumstances may arise where parties have asymmetrical means of accessing
information. For example, a candidate or political party who authorises a
misleading or deceptive advertisement with internal knowledge of the facts may
cause a media organisation to unwittingly publish it. Without recourse to a
defence, the media organisation is liable to the same extent as the person who
concocted the lie. The statutory defence minimises the risk of unjust outcomes
that may generally have the effect of discouraging the publication of political
advertising.
39 The defence will be available to a defendant in a limited set of
circumstances. The onus of proof lies with the accused to show that a reasonable
person in the circumstances and with the same means of accessing information as
the accused could not reasonably be expected to have known the advertisement
was misleading and deceptive. Therefore, the defence will not be open to persons
who carelessly republish misleading and deceptive statements without reference
to information that is reasonably available to them.
Existing Commonwealth provisions
40 Existing Commonwealth protections against misleading or deceptive
political advertising are insufficient.
41 Section 329 of the Commonwealth Electoral Act 1918 prohibits the
publishing or distribution of material that is likely to mislead or deceive an elector
in relation to the casting of a vote. Section 329 has been narrowly interpreted by
the High Court in Evans v Crichton-Browne to only cover the act of casting a
9F
vote, not the decision that leads to that vote.54 Misleading or deceptive political
advertising that does not relate to the vote-casting process is not captured and
prohibited by s 329.
42 The Australian Communications and Media Authority (ACMA)--the
federal communications regulator--does not evaluate the veracity of factual
content in a political advertisement. Although ACMA regulates electoral or
53
Ibid quoting Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 at 750 (Gleeson CJ)
54
Evans v Crichton-Browne (1981) 147 CLR 169.
11
referenda matter under the Broadcasting Services Act 1992, this does not include
testing the truth and accuracy of political advertisements.55
43 Section 18 Commonwealth Competition and Consumer Act 2010 regulates
against misleading and deceptive advertising in trade and commerce, but this does
not extend to political advertising. The Act states that a person must not 'engage
in conduct that is misleading or deceptive or is likely to mislead or deceive'. The
concept of preventing misleading and deceptive advertising is thus not foreign to
the private sector.
44 This Bill seeks to apply similar advertising standards that are expected in
respect of the provision or sale of goods and services to political advertising.
State and Territory Legislation
45 The Australian Capital Territory and South Australia are the only two
jurisdictions in Australia with operable truth in political advertising provisions.
46 In South Australia, s 113 of the Electoral Act 1985 has prohibited
misleading or deceptive statements of fact in electoral campaigns since 1985.
Under the provision, it is an offence to issue an advertisement containing electoral
matter if the 'advertisement contains a statement purporting to be a statement of
fact that is inaccurate or misleading to a material extent.'
47 The South Australian Electoral Commissioner, Mick Sherry, reports that
there is a strong and discernible relationship between politicians' awareness of the
existence of SA's truth in political advertising laws and their tendency to avoid
expressing misleading political statements.56
48 Importantly, the legislation has survived constitutional scrutiny in the South
Australian Supreme Court in Cameron v Becker.57
49 More recently, in August 2020, the Australian Capital Territory's legislature
unanimously passed truth in political laws. Section 297A of the Australian
Capital Territory (Electoral) Act 1992 includes a truth in political advertising
provision that is substantially similar to the South Australian legislation.
50 This Bill follows a similar structure and complaints mechanism to these
existing examples in State and Territory legislation.
55
Ad Standards. (n.d.) Political and election advertising. Ad Standards Australia, viewed
November 13, https://adstandards.com.au/issues/political-and-election-advertising
56
Sherry, M. (2022, August 10) National Webinar on 'Truth in Political Advertising Laws and the
Australian Constitution'. Australian Association of Constitutional Law,
https://www.monash.edu/law/events/archive/truth-in-political-advertising-laws-and-the-australian-
constitution
57
Cameron v Becker (1995) 64 SASR 238
12
Financial Impact
51 Nil
13
Statement of compatibility with human rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
COMMONWEATLH ELECTORAL AMENDMENT (VOTER
PROTECTIONS IN POLITICAL ADVERTISING) BILL 2023
No , 21
This Bill is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the Bill
1 This Bill amends the Commonwealth Electoral Act 1918 to prohibit
misleading or deceptive electoral or referendum matter.1
2 The Bill prohibits electoral or referendum matter that contains a statement in
relation to a matter of fact that is misleading or deceptive to a material extent; or
is likely to mislead or deceive to a material extent.
3 The Bill also prohibits persons or bodies corporate from deceptively
impersonating, or falsely attributing material to, a person, candidate, campaigner,
party, or entity.
4 The Bill invests the Electoral Commissioner with the power to investigate
possible breaches, order retractions, publish corrections, and pursue a complaint
through the courts. The Bill also allows a person to refer a possible breach to the
Electoral Commissioner and the courts, but provides that any application that is
frivolous, vexatious, misconceived, or lacking in substance may be dismissed.
5 A natural person found to commit an offence may receive a maximum
pecuniary penalty of 50 penalty units.2 A body corporate found to commit an
offence may receive a maximum pecuniary penalty of 250 penalty units, as per s
4B(3) of the Commonwealth Crimes Act 1914.
6 The purpose of the Bill is to protect Australia's electoral processes from
misinformation and disinformation.
7 The Bill aims to do so by regulating misleading or deceptive electoral or
referendum matter in a way that is effective, constitutionally sound, timely, and
1
By 'electoral matter or referendum matter', the Bill means material communicated or intended to
be communicated for the dominant purpose of influencing the way electors vote in an election or
referendum. See s 321K of the Bill for a full definition of the term.
2
A penalty unit is the standard amount of money used to determine penalties for a breach of the
law. A fine is calculated by multiplying the value of a penalty unit, which is indexed to inflation,
by the number of units prescribed for the offence.
enforceable, without chilling political speech or producing other unwanted
consequences.3
8 In so doing, the Bill aims to fill a legislative gap and vulnerability in
Australia's electoral law. Section 329(1) of the Commonwealth Electoral Act
1918 prohibits 'any matter or thing that is likely to mislead or deceive an elector
in relation to the casting of a vote'. In Evans v Crichton-Browne (1981), the High
Court interpreted s 329(1) to apply only to the moment of preference
expression--that is, the mechanical act of casting a vote.4 This Bill extends
protections against misleading or deceptive matter during the crucial preference
formation stage--that is, during the formation of an elector's preferences about
who or what to vote for.
9 Misinformation and disinformation are disrupting elections around the
world. According to Freedom House, misinformation and disinformation
undermined the elections of at least 17 countries in the year following the 2016
United States presidential election, 'damaging citizens' ability to choose their
leaders based on factual news and authentic debate'.5
10 Australian politics has also suffered from misinformation and
disinformation. Examples of misleading or deceptive political advertising abound
in recent political history.6
(a) In the 2016 federal election, the Labor Party potentially eroded the
Liberal-National Coalition's parliamentary majority through its
'Mediscare' campaign, which falsely claimed that the Coalition sought to
privatise Medicare.7
(b) In the 2019 federal election, the Coalition's spurious claim that the Labor
Party sought to impose a 'death tax' harmed Labor's election prospects.8
3
Hill, L., Baltutis, R., & Douglass, M. (2022) How and Why to Regulate False Political
Advertising. Palgrave Macmillan.
4
Evans v Crichton-Browne (1981) 147 CLR 169.
5
Kelly, S., Tuong, M., Shahbaz, A., Earp, M., & White, J. (2017) Freedom on the Net 2017.
Freedom House. https://freedomhouse.org/sites/default/files/2020-
02/FOTN_2017_Final_compressed.pdf, 1.
6
For more examples, see also Browne, B. (2019) We can handle the truth. The Australia Institute,
https://australiainstitute.org.au/report/we-can-handle-the-truth-opportunities-for-truth-in-political-
advertising/; and Browne, B., and Shields, T. (2022) Fortifying Australia's Democracy -
Submission to the Joint Standing Committee on Electoral Matters inquiry into the 2022 federal
election. The Australia Institute, https://australiainstitute.org.au/report/fortifying-australian-
democracy/.
7
Elliot, A., & Manwaring, R. (2018) 'Mediscare!': Social issues. In A. Gaujia, P. Chen, J. Curtin
& J. Pietsch (eds.), Double disillusion: The 2016 Australian Federal Election, 549-569. ANU
Press.
8
Carson, A., Gibbons, A., & Phillips, J. B. (2021) Recursion theory and the 'death tax':
Investigating a fake news discourse in the 2019 Australian election. Journal of Language and
Politics, 20(5), 696-718.
15
(c) In the 2020 Queensland state election, the group, Advance Australia,
posted a deep fake of the Premier, Annastacia Palaszczuk, that was viewed
one million times.9
(d) In the 2022 federal election, candidates from One Nation, United Australia
Party, and other micro parties engaged in a 'dangerous' disinformation
campaign that made baseless claims of widespread electoral fraud.10
11 Referenda are particularly prone to misinformation and disinformation.
Internationally, the United Kingdom's vote to leave the European Union is a
recent example of where disinformation--and a lack of regulation on political
advertising--damaged the legitimacy of a referendum.11 More importantly, it is
also thought to have distorted preferences by fraudulently steering the outcome to
a 'No' vote.12
12 In his review of every Australian referendum, Scott Bennett surmises that 'a
great deal of exaggeration and distortion is standard fare'.13 According to
Professor Anne Twomey, '[s]care campaigns are effective even if there is little or
no truth behind them' because it is enough 'to plant doubt' for people to vote
no--a tactic Twomey notes was used prominently in the 1999 referendum on a
republic.14 For this reason, Professors Gabrielle Appleby and Lisa Hill
recommend that '[a]ny new truth in political advertising laws must extend to
referendums.'15
9
This deep fake was labelled as such, so it was a relatively innocuous case of the technology.
Wilson, C. (2020, November 2) Australia's first deepfake political ad is here and it's extremely
cursed. Gizmodo, viewed 10 November 2022, https://www.gizmodo.com.au/2020/11/australias-
first-deepfake-political-ad-is-here-and-its-extremely-cursed/
10
Butler, J., & Martin, S. (2022, April 17) AEC alarmed at 'dangerous' voter fraud claims
spreading before Australian election. The Guardian, viewed 11 November 2022,
https://www.theguardian.com/australia-news/2022/apr/17/aec-alarmed-at-dangerous-voter-claims-
spreading-before-australian-election?CMP=oth_b-aplnews_d-3
11
Renwick, A. and Palese, M. (2020) Tackling misinformation in referendums: Lessons from
anglophone democracies. In S. Baume, V. Boillet, & V. Martenet (eds.), Misinformation in
Referenda, 194-219. Routledge, 194.
12
Henkel, I. 2021. Destructive Storytelling: Disinformation and the Eurosceptic Myth that Shaped
Brexit. Palgrave Macmillan.
13
Bennett, S. (2003) The politics of constitutional amendment. Department of the Parliamentary
Library Research Paper No. 11 (2002-03) https://www.aph.gov.au/binaries/library/pubs/rp/2002-
03/03rp11.pdf, 20.
14
Twomey, A. (2022, May 27) Changing the Australian Constitution is not easy, but we need to
stop thinking it's impossible. The Conversation, viewed November 12,
https://theconversation.com/changing-the-australian-constitution-is-not-easy-but-we-need-to-stop-
thinking-its-impossible-183626
15
Appleby, G., & Hill, L. (2022, September 7) When the Indigenous voice referendum is upon us,
be wary of misinformation and scare campaigns. The Guardian, viewed November 12,
https://www.theguardian.com/australia-news/commentisfree/2022/sep/07/when-the-indigenous-
voice-referendum-is-upon-us-be-wary-of-misinformation-and-scare-campaigns
16
13 According to a Roy Morgan survey, over two-thirds of Australian adults
have been exposed to deceptive news items.16 Another study found that a quarter
of a sample of Australian adults had read stories that were 'completely made
up'.17 More recently, The Australia Institute's exit poll of the 2022 federal
election found that 73 per cent of Australians came across misleading political
advertisements during the election campaign.18 In all these cases, the true figure
may be higher, given that research shows that the ability of consumers to
distinguish fact from fiction is much lower than they realise.19
14 To make matters worse, there are perverse incentives in the information
market to produce false political information.20 The political economy of social
media erodes 'both the media's willingness to supply "truth" in political
discourse, and the consumer's demand for it'.21 There is a lucrative market to
produce fake news for consumers who naturally seek information that confirms
their existing prejudices.22 The result is that misleading or deceptive information
is highly transmissible.23
15 The Australian Competition and Consumer Commission's Digital Platforms
Inquiry recommended better regulation of social media content to prevent
misinformation and disinformation. 24 The Australian Code of Practice on
4F
Disinformation and Misinformation (2021) provides for voluntary self-regulation
by social media companies of the accuracy of content distributed through their
platforms. 25 However, the Code does not address the matter of misleading or
5F
deceptive political advertising because there is no current legal mechanism to
underpin it in that regard. This Bill provides that mechanism.
16
Hayden, S., & Bagga, N. (2018) Consumer use of news. Roy Morgan, viewed 12 November
2022, https://www.accc.gov.au/system/files/ACCC%20cons umer%20survey%20-
%20Consumer%20use%20of%20news%2C%20Roy%20M organ%20Research.pdf
17
Hughes, C. (2020, September 20) Share of consumers who are exposed to fake news in Australia
2018 by gender. Statista, viewed 12 November 2021,
https://www.statista.com/statistics/891818/australia-con sumer-exposure-to-fake-news-by-gender/
18
The Australia Institute. (2022) Exit poll - Misinformation in the federal election campaign. The
Australia Institute, viewed 12 November, https://australiainstitute.org.au/report/political-
advertising-on-social-media-platforms-during-the-2022-federal-election/
19
Lyons, B., Guess, A., Montgomery, J. M., Nyhan, B., & Reifler, J. (2021) Overconfidence in
news judgments is associated with false news susceptibility'. PNAS, 188(23), e2019527118.
20
Braun, J. A., & Eklund, J. L. (2019) Fake news, real money: Ad tech platforms, profit-driven
hoaxes, and the business of journalism. Digital Journalism, 7 (1), 1-21.
21
Hill, L. (2022, August 23) Australians are tired of lies in political advertising. Here's how it can
be fixed. The Conversation, viewed 12 November, https://theconversation.com/australians-are-
tired-of-lies-in-political-advertising-heres-how-it-can-be-fixed-189043
22
Hughes, H. C., & Waismel-Manor, I. (2021) The Macedonian fake news industry and the 2016
US election. Political Science & Politics, 54(1), 19-23.
23
Buchanan, T. (2020) Why do people spread false information online? The effects of message
and viewer characteristics on self-reported likelihood of sharing social media disinformation. Plos
One, 15(10), 1-33.
24
Australian Competition and Consumer Commission (2019) Digital Platforms Inquiry Final
Report, Commonwealth of Australia, 280, https://www.accc.gov.au/publications/digital-platforms-
inquiry-final-report
25
DIGI. (2021) Australian Code of Practice on Disinformation and Misinformation.
https://digi.org.au/disinformation-code/
17
16 Misleading or deceptive electoral or referendum matter requires legal
regulation because it is a 'democratic collective action problem'.26 The market
creates social and political harms that require state action to remedy.
17 Prohibitions against misleading or deceptive political advertising are
popular in Australia, and the desire for legal reform has grown in recent years.27
Nationally representative polling by The Australia Institute indicates that 9 in 10
Australians want truth in political advertising laws, compared to five per cent who
do not. 28 Agreement is consistently high across gender, geography, and voting
0F
intentions. Further nationally representative polling by The Australia Institute in
June 2022 found that 9 in 10 Australians want truth in political advertising laws to
be legislated before the next federal election.29
18 This Bill is designed to implement safeguards in Australia against the
misleading and deceptive advertising.
Human rights implications
19 The amendments proposed in this Bill engage the following rights under the
International Covenant on Civil and Political Rights (ICCPR):
• the right to freedom of expression (Part III, Article 19, Section 2); and
• the right to take part in public affairs (Part III, Article 25).
The right to freedom of expression
20 The right to freedom of expression is contained in Article 19 of the ICCPR.
It includes the 'freedom to seek, receive and impart information and ideas of all
kinds,' regardless of medium (Article 19(1), ICCPR).
21 This right is engaged because the Bill seeks to limit freedom of expression
by making unlawful the printing, publication or distribution of certain content,
where that content is referenda matter or electoral matter within the meaning of
section 4AA of the Commonwealth Electoral Act 1918.
22 The right to freedom of expression is not absolute and may be limited by
law, to the extent those limitations are necessary for the respect of the rights or
reputations of others; or the protection of, inter alia, public order (Article 19(3)
ICCPR).
26
Hill et al, How and Why to Regulate False Political Advertising, 23.
27
Browne, B., and Shields, T. (2022) Fortifying Australia's Democracy - Submission to the Joint
Standing Committee on Electoral Matters inquiry into the 2022 federal election. The Australia
Institute, https://australiainstitute.org.au/report/fortifying-australian-democracy/, 13-20.
28
The Australia Institute. (2020, June 17) Polling - Truth in political advertising.
https://australiainstitute.org.au/report/polling-truth-in-political-advertising/; Browne,
29
Arya, P. (2022) Political advertising on social media platforms during the 2022 federal election.
The Australia Institute, https://australiainstitute.org.au/report/political-advertising-on-social-
media-platforms-during-the- 2022-federal-election/
18
23 The new limitations introduced by the Bill are further necessary for the
overall protection of the rights and reputations of political participants, along with
the protection of public order by limiting the proliferation of disinformation and
misinformation in the political realm.
24 False political advertising can undermine public order in a significant and
serious way.30 It can:
(a) Manipulate and mislead voters
(b) Prevent electors from understanding the true nature of policy debates
(c) Harm individuals by causing reputational injury
(d) Alter the course of elections
(e) Corrode the norms of political debate
(f) Raise the information cost of voting participation, particularly among
socioeconomically disadvantaged groups
(g) Aggravate low turnout among the disadvantaged and promote democratic
disengagement more generally
(h) Undermine trust in democracy, political institutions, and politicians
(i) Increase political, economic, and cultural polarisation
(j) Stoke populist or extremist sentiment
(k) Delegitimise electoral processes
30
See Hill et al, How and Why to Regulate False Political Advertising, 15-32; Browne, B. (2019)
We can handle the truth. The Australia Institute, https://australiainstitute.org.au/report/we-can-
handle-the-truth-opportunities-for-truth-in-political-advertising/; Rowbottom, J. (2012) Lies,
manipulation and elections--Controlling false campaign statements. Oxford Journal of Legal
Studies, 23(3), 507-535; Dardis, F. E., Shen, F., & Edwards, H. H. (2008) Effects of negative
political advertising on individual's cynicism and self-efficacy: The impact of ad type and message
exposures. Mass Communication and Society, 11(1), 24-42; Yoon, K., Pinkleton, B. E., & Ko, W.
(2005) Effects of negative political advertising on voting intention: An exploration of the roles of
involvement and source credibility in the development of voter cynicism. Journal of Marketing
Communications, 11(2), 95-112; Marshall, W. P. (2004) False campaign speech and the First
Amendment. University of Pennsylvania Law Review, 153(1), 285-323; Roose, J., & Khalil, L.
(2020, September 11) Countering extremism and conspiracies in a global pandemic. ABC, viewed
12 November 2022, https://www.abc.net.au/religion/countering-extremism-and-conspiracies-in-a-
pandemic/12656734; Cantarella, M., Fraccariki, N., & Volpe, R. (2019) Does fake news affect
voting behaviour? DEMB Working Paper Series No. 26409; Henkel, I. (2021) Destructive
storytelling: Disinformation and the Eurosceptic myth that shaped Brexit. Palgrave Macmillan;
Jones-Jang, S. M., Kim, D. H., & Kenski, K. (2020) Perceptions of mis-or disinformation exposure
predict political cynicism: Evidence from a two-wave survey during the 2018 US midterm
elections. New Media and Society, 23(10), 3105-3125; Browne, B., Seth-Purdie, R., & Shields, T.
(2021) Identifying the problem: Voter ID laws a solution in search of a problem. The Australia
Institute, https://australiainstitute.org.au/report/identifying-the-problem/
19
(l) Undermine authentic electoral outcomes
(m) Threaten the peaceful transfer of power
(n) Lead to social instability and civil unrest
25 The Bill only constrains the ability of a person to disseminate electoral or
referenda matter that contains a statement in relation to a matter of fact that is
misleading or deceptive to a material extent; or is likely to mislead or deceive to a
material extent, or which wrongly passes itself off as having been produced by a
particular political actor.
26 The Bill does not otherwise impose any restrictions on individuals
expressing their political views, including opinions, or contributing to public
discourse on elections, government, or political actors. In this way, the limitations
proposed by the Bill are reasonable and proportionate.
27 The Bill is compatible with the right to freedom of expression.
The right to take part in public affairs
28 The right to take part in public affairs is contained in Article 25 of the
ICCPR. This right provides that 'every citizen shall have the right and the
opportunity, without any of the distinctions mentioned in Article 2 and without
unreasonable restrictions, to take part in the conduct of public affairs.' None of
the distinctions mentioned in Article 2 of the IPCC are relevant to the provisions
of the Bill.
29 This right is closely linked to the right to freedom of expression and
accordingly, the Bill is engaged in a similar context. The Bill only seeks limit the
right to take part in public affairs, to the extent that participation involves the
dissemination of electoral or referenda matter that contains materially misleading
or deceptive factual statements, or which incorrectly passes itself of as having
been produced by a particular political actor.
30 These limitations are necessary, reasonable and proportionate for the
reasons outlined above. The Bill does not otherwise impose any restrictions on
individuals participating in the political realm.
31 The Bill is compatible with the right to take part in public affairs
Conclusion
32 The Bill is compatible with human rights because to the extent that it may
limit human rights, those limitations are reasonable, necessary and proportionate.
20
Notes on clauses
Part 1--Preliminary
Clause 1--Short title
Clause 1 specifies that the short title of the Bill, once enacted, will be the
Commonwealth Electoral Amendment (Voter Protections in Political Advertising)
Act 2021.
Clause 2--Commencement
1 Clause 2 provides for the Bill to commence as an Act on the 28th day after
Royal Assent.
Clause 3--Schedules
2 Clause 3 clarifies the interaction of schedules in this Act with others in the
Commonwealth Electoral Act.
Schedule 1--Amendments
Part XXB Misleading and deceptive political advertising
3 Item 1 inserts the following provisions to amend the Commonwealth
Electoral Act 1918.
321J Definitions
4 Defines an election participant, what it means to engage in conduct and to
publish, and also defines referendum and referendum matter.
321K Meaning of referendum matter
5 This section defines referendum matter in a way which is analogous to the
existing definition of electoral matter, with appropriate changes made.
321L Electoral matter or referendum matter that is misleading or deceptive
etc.
6 This section specifies that a person must not publish or distribute political
advertisements that are misleading or deceptive.
7 This section also prohibits the ability to impersonate or pass-off material as
being another person or published by another person. This is targeted at the use of
technology to mislead or deceive with the most extreme example being the use of
deep fakes to completely imitate the image or voice of a potential candidate to
deliberately mislead or deceive voters about what has been said.
21
321M Complaints
8 321M Complaints allows any person to make a complaint to the Electoral
Commissioner regarding a breach under 321L.
321N Powers of Electoral Commissioner
9 321N establishes the powers of the Electoral Commissioner to investigate
and take action to remedy the breach
321P Powers of courts
10 321P establishes the powers of the courts and referral powers. This includes
the ability of the Electoral Commissioner or a person who had made a complaint
to the Commissioner to make an application to the court to prosecute the alleged
breach. 321P(3) inserts clauses allowing the court to dismiss such applications if
they are vexatious or an abuse the court process.
321Q Offence
11 Outlines the offence and remedies available which may include a fine of up
to 50 penalty units for natural persons.
2 Section 329 (at the end of the heading)
12 Specifies that the clause is restricted to the casting of a vote as read by the
High Court of Australia in Evans v Crichton-Browne.
3 After subsection 383(10)
13 Clarifies that the injunctions provided for in s 383 are not applicable to the
offences outlined in s 321L as the remedies for those offences are entirely
contained in s 321.
22