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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2021-09-09 Daily Xml
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Bills

Electoral (Electronic Documents and Other Matters) Amendment Bill

Committee Stage

In committee (resumed on motion).

Clause 36.

Ms COOK: In respect of matters being heard by SACAT versus the Electoral Commissioner reviewing matters such as we have been discussing, has there been modelling done on the cost of that? Is it more expensive for that to go to a SACAT hearing rather than be heard by the Electoral Commissioner?

The Hon. V.A. CHAPMAN: Not that I am aware of.

Ms COOK: The minister has described and discussed the process by which this might happen under SACAT. We have discussed our concerns regarding that turnaround time given the pressures SACAT are under. Is the Attorney able to give us some guarantees that these matters will not impinge on the capacity of SACAT to put its full resources and time into the other hearings that represent those vulnerable people in our communities who need that support in a timely fashion and then, on the flip side, also be able to guarantee that the electoral matters will turn around in that 24-hour or thereabouts time frame that is important in an election cycle? That is two in one really.

The Hon. V.A. CHAPMAN: I cannot give guarantees about the application of either the commission or the SACAT. What I have indicated to you is that the President of SACAT has been informed what the expectation would be to actually undertake this work—that is, adjudication of these matters in the election envelope and the necessity for that to be expedited in a very small time frame. There are some applications currently done by the commission that I think are not expedited already in a timely manner, and that is part of the reason why we get this report saying, 'This is a problem you have left us with and it is difficult for us to actually undertake this work.'

As the member would know if she is familiar with the processes that occur, usually a written notice goes in email to the commission advising that there is an allegation of breach of the misleading advertising provision. Often, that is immediately emailed to the party who is allegedly offending and they have an opportunity to put something in. That can all be done within hours and interim decisions made, including the holding of any further publication until the matter is resolved, and then it is dealt with as quickly as possible.

I do not doubt that the commissioner allocates his resources to do that as quickly as possible. At times, I have thought that has been a bit tardy relative to the urgency of dealing with and the disadvantage that can be given to a victim in that situation. That is just my personal view. He is making the observation about how difficult it is for them to do this work. It is not a new observation. It was very pressing during the last election for the reasons I have pointed out, and those same circumstances may be repeated in the next election.

We are in the electronic era and the concept of saying that I can complain about a poster that is put up on such and such a road and the capacity to manage that, expeditiously remove it and publish retractions—they almost are the easy things that used to happen. Now we are talking about something that goes to the world and can be downloaded, copied and repeated a trillion times.

Yes, I think everyone understands that it needs to be done expeditiously. I assure you that Her Honour understands the importance of that. She has indicated who she thinks within her court ought to be dealing with those matters and that she would accommodate that, or she would await the further advice from the parliament as to a decision on whether we are doing it or not.

Ms HILDYARD: I had a similar question about the turnaround time frame for applications. I think the Attorney has elaborated on some of the matters I wished to canvass in her answer just given to the member for Hurtle Vale's question. I want to explore one thing she mentioned, that is, when an application goes into the tribunal that there is capacity for a particular piece of material to be subject to a request for further distribution, publication, etc., to be put on hold.

Given I am not sure that we do have clarity about the time frames it may take to hear particular matters in detail, and given we know that particularly in those interesting weeks just before an election time frames are incredibly important around these issues, I wonder if there is any capacity the Attorney could speak about for the tribunal to guarantee—I guess I am looking for some surety. Given we are not quite clear about the time frame for a matter to be heard in its entirety, I wonder if the Attorney could give some clarity about the likelihood or whether there is any guarantee that particular matters will be put on hold in terms of the tribunal saying, 'Until this matter is heard, please do not publish this information, this material. Please do not further distribute this material.'

The Hon. V.A. CHAPMAN: All I can add is that I refer the member to section 113, the misleading advertising process which is set out in the act. It sets out the authorisation obligations and then the powers of the Electoral Commissioner at present as to what they can do:

(a) withdraw the advertisement from further publication;

(b) publish a retraction in specified terms and a specified manner and form—

etc. This is a process which is—

Ms Hildyard interjecting:

The Hon. V.A. CHAPMAN: Well, I am just indicating that there have been circumstances where there is a capacity for them to do that. It is a very general power. In the report, they give an example of where it took days to actually process an application—I think 10 days is the example they give—before there is a resolution of a matter. They are explaining that they really have a workload issue down there, in the sense of managing it, but we are not changing the process. We still want the arbitrator to be able to deal with something expeditiously, which they can do, but this sets out the powers of what they have set out in the actual act.

Ms HILDYARD: In relation to subsection (4)(b), the publishing of a retraction in specified terms and a specified manner and form, I am interested in a general sense about the range of methods of publishing a retraction. I am particularly interested in the scope the Attorney could envisage whereby a particular piece of material has not necessarily been published in the newspaper or whatever but may have been letterboxed. I am wondering if there is capacity for that sort of order or that sort of direction to publish a retraction if that published retraction would include reletterboxing a particular area to withdraw what had previously been letterboxed—if that makes sense.

The Hon. V.A. CHAPMAN: I can only draw on my memory of these things, but I do recall that there was a letterbox one—possibly not at the last election, but from memory there was a letterbox one in relation to the Housing Trust, and I think there were orders made in relation to that for an area to be reletterboxed.

Importantly, as the member quite rightly points out, it is easy to have an advertisement and then a retraction order of the commissioner in the next available day in the same position, at the same level of the paper, in the same colour and in the same size, or otherwise, whatever the conditions are going to be.

They were easy days. Now the difficulty is that there is such speed in terms of the misdemeanour in relation to the misleading advertising that can be published and distributed and the urgency of doing that. So how does even the arbitrator in this situation determine what is appropriate—in addition to a retraction—for the publication of further material and the distribution of it to try to remedy the error, if in fact a breach has been found? I cannot answer that. I just simply say that they have the power to do these things.

The question of how they do it in the modern day is another matter. However, it is no different from the obligations sometimes in our defamation law where apologies are given and retractions are made. I think the biggest argument found in these things is that there is some defamatory statement, often by newspapers or journalists—I do not mean to pick on them, but they are often at the end of defamation actions—and there is an obligation to publish material in the newspaper.

I can think of one famous one when the former member of this parliament Mr Nick Xenophon, took action against the then Prime Minister, Julia Gillard, and others, and I think there was an obligation at the end of that for the Prime Minister and a number of other parties to publish in national newspapers some retraction or apology for it.

There are quite a lot of, I suppose, helpful precedents set out in the defamation practices and the way in which they enforce these things. These are real and present concerns, and we have a provision in our electoral laws to have some respite from inappropriate behaviour where there is misleading advertising, and as best he can I think that the Electoral Commissioner has been going along with this.

As I say, he has pointed out that it is a very difficult area for them to do this work, and in discussion with him and the SACAT this alternate is proposed. I think that we should be certainly pleased, and if we are going to keep this regime—and I think there is a hard case for it—then let us find the best forum to do it, and I think that the best forum to do it is under president Hughes.

Ms HILDYARD: I now turn to the final paragraph in subsection (5)(a), just over the page. I am just really interested—

The Hon. V.A. CHAPMAN: Clause 36?

Ms HILDYARD: Clause 36, yes. Could you please explain the difference between the order of the tribunal not being subject to an application for an internal review under section 70; however, an appeal against an order can be instituted under section 71? I wonder whether you could just outline the difference between those two processes.

The Hon. V.A. CHAPMAN: I will check that, but I think it relates to the fact that currently under the SACAT format there is an internal review process that applies in relation to some administrative matters—in fact, FOI is one of them I can think of—and there are alternate appeal processes. I will see whether there is anything else I can add to that, but it is to make clear as to how this is to apply.

What happens at SACAT, as some may know, is that they often review decisions. There are processes in courts and tribunals, and there is a difference about whether a review is something heard de novo, whether it has an appeal status, and the like. Tribunals are set up, a bit like our Employment Tribunal—exactly the same model, actually, except that the Employment Tribunal can also sit as an industrial court, and there are different processes they apply. That is: 'an order of the tribunal under subsection (4) may not be the subject of an application for internal review'.

So we are not employing the processes that are otherwise available in a tribunal, which would prolong the matter. We are really transferring responsibility to SACAT with powers to do it in the format that is already under the Electoral Act.

Mr SZAKACS: The contribution I rise on is somewhat unique in this chamber in that I have been personally, during my time at SA Unions as a secretary there, subject to a number of complaints and proceedings under this section. I would like to give some perspective on the current proceedings as well as the potential changes, which will lead to some questions of the Attorney on that.

It is also interesting, not so much that I would agree with the Attorney but that I think we have both drawn the ire and threat of strategic litigation at various times from Nick Xenophon.

The Hon. V.A. Chapman interjecting:

Mr SZAKACS: Okay, the Attorney has complained about it. I am probably unique then that I have been the subject, as secretary of SA Unions (trading as SA Unions and the old United Trades and Labour Council) on at least six different occasions of that strategic litigation from Nick Xenophon and his various iterations of political parties: the Hon. Nick Xenophon of this parliament and then the Senate. I think currently or formerly on the back of a shopper docket he advertised himself as a lawyer, and potentially as well, at the moment or previously—certainly since he lost his attempt to return to this chamber due to the enormous efforts of the member for Hartley—as a lobbyist for Huawei, which has been of particular interest to security agencies in this country.

My interest in this section is about what it will mean for third parties. We talk, significantly, about political parties—as we should—being subject to this clause and these changes, but my interest is third parties. It may be the Conservation Council, in my case and experience it could be the trade unions, it may be the case that Business SA or the Property Council or others will be, or will likely be, subject to complaints or proceedings under this section and the proposed changes to SACAT.

I have always been incredibly glowing about the work undertaken by the Electoral Commission, the officers of the Electoral Commission and the electoral commissioners themselves regarding the prompt turnaround of complaints, however spurious or otherwise those complaints may be.

I have had the experience of responding to complaints against the organisation I led, SA Unions, from Nick Xenophon in this case—in fact, it has only ever been Nick Xenophon I have had to respond to complaints from. I have accused a couple of other people on the other side of this chamber of having glass jaws from time to time, but no-one in my trade union, labour movement or political experience has had a glass jaw like Nick Xenophon himself. It is quite extraordinary at times.

From memory, Nick Xenophon's first complaint to the Electoral Commission—at the time Ms Kay Mousley was the commissioner—was around the position on penalty rates of the Nick Xenophon party. I use that name colloquially. I am sorry, Chairman, but I cannot keep track of how many different names this party has had from time to time.

It was quite extraordinary. I remember the advertising. It was television advertising that was subject to the complaint. It was radio advertising that was subject to the complaint. It would be no surprise to anybody in this chamber that working people, through their membership of trade unions, felt very strongly about protecting penalty rates and, therefore, found ways to pull together significant amounts of money to pay for advertising. No advertising is cheap. In country papers it is a little bit cheaper, but certainly in metropolitan papers it is anywhere between $25,000, to $35,000 for a full page; it certainly adds up. We ran paid advertising.

Also subject to the complaints, which the Electoral Commissioner was asked to hear, were tweets put out by SA Unions that were, of course, authorised by me as the elected secretary. Phone calls were also put out, authorised by me. I cannot recall whether it was an extraordinary member of one of our trade unions, affiliate unions, who voiced the phone calls or whether it was another person, but at the heart of these claims and complaints by Nick Xenophon was the fact that we were misrepresenting their position, his position, or their party's position on their opposition to penalty rates.

The reason I speak about this is the concern that I have about the spurious nature of these complaints about the work that the trade unions and I were doing on various subject matters, complaints that were forthcoming from Nick Xenophon from effectively 2014 through to about 2018. What would happen under the new regime that the Attorney and government propose around moving matters from the commission to the SACAT?

The subject matter that was first complained about was penalty rates. The particular complaint was in relation to Nick Xenophon's dogged opposition and attempts to remove penalty rates from weekend work for various cohorts of workers. We did one of the greatest things that you can do in political advertising, and that is to use the quotes, use the truth, as a way to tell a story.

There are all sorts of creative enterprises used with political advertising. Some of it is humorous, some of it is pretty hard-hitting, but nothing quite comes home as much as using the actual stated, published policy of a political party to remind people what they stand for. In this case, it was to remind voters, particularly voters who had an interest in fairness at work, that Nick Xenophon wanted to abolish penalty rates for retail workers on Saturdays, weekends, and reduce it on public holidays—but a complete abolition for Saturdays. That was nature of the complaint.

I recall that a significant amount of work was put in by me, one of my advisers and one of my officers to respond to that. My significant concern is that if that same nature of complaint and dispute is then mitigated to a much more formal process—being the SACAT—what would that mean for the ability of working people, a cohort of small business owners, the Property Council or even large industry that is organised by the AI Group, for example?

What would it mean for them to need to respond to these matters in a much more formal and litigious way when enterprising lawyers-cum-politicians like Nick Xenophon seek to exploit that through the democratic processes we have? I am interested—seeing the Attorney has raised her own interface with some of the tactics otherwise used by these other third parties or newer political parties that enter the space—how these proposed changes would affect, impact or curtail the ability of third parties outside registered political parties to participate in the political process through their means of political advertising.

The Hon. V.A. CHAPMAN: The provisions under part 10 which relate to the scrutiny in various ways, including advertising, are fairly prescriptive and set out a whole lot of offences, and it is not confined just to candidates or political parties. In relation to advertising, if I go back to the provision for offences on misleading advertising, and I will quickly find that, it says:

113—Misleading advertising

(1) This section applies to advertisements published by any means (including radio or television).

(2) A person who authorises, causes or permits the publication of an electoral advertisement—

and there are definitions for that. That may be by a union or a third party—

…is guilty of an offence if the advertisement contains a statement purporting to be a statement of fact that is inaccurate and misleading to a material extent.

I have my adviser here and she tells me that persons other than a political party, but someone who has authorised this, can still be the subject of this. It sounds as though the member has authorised things in his previous role—was it as secretary of SA Unions?

Mr Szakacs: Yes.

The Hon. V.A. CHAPMAN: —and therefore has been in a hotspot, a bit like directors of political parties. I hasten to add that under subsection (3) there are a couple of defences you can have just in case you need it again for when you may be exempt from that.

In any event, it sets out a process, and that model is what would still be utilised for the purposes of the scrutiny by the SACAT. I was going to refer to this later, but there is also a provision in this whole section about how the evidence is called, etc., but it also sets out the injunctive power in section 132, which other members have also asked about, for immediate relief in these circumstances.

I have quite a bit of information about how that applies, but I just make the point that it is an area which has been considered and which would enable there to be continued access to and relief provided by way of injunction for any noncompliance under this division.

Mr SZAKACS: Thanks, Attorney. Chairman, I am sure you were racking your brain around the name of the political party at the time: it was the X-Team.

The CHAIR: It is no wonder we did not remember.

Mr SZAKACS: That is right—and may we not remember—one of the iterations. I also thank you, Attorney, for your answer and your adviser as well. In addition to the matters around penalty rates, I should clarify. I think I spoke broadly around Nick Xenophon and the X-Team's opposition and dislike for penalty rates so, to be entirely forthcoming with this house, I probably should actually read the quote so that I will not be in any position to have misrepresented their position. The quote, directly taken from the policy of the X-Team, was:

Penalty rates in the retail and hospitality sectors for casual and part-time workers in small businesses have cost thousands of jobs and need to be changed. For small businesses with fewer than 20 full-time equivalent employees, penalty rates shouldn't apply during normal trading hours on weekends.

I think I may have said Saturday but, from memory, of course it was Sunday that Nick Xenophon wanted to cut the pay of low-paid retail and hospitality workers as well.

There were other matters that we as a collective of working people, as an arm of the labour movement, spoke about as well around this that was the subject of complaints to the Electoral Commissioner. I have not spoken about the Australian Electoral Commission, but of course I would not be surprised that if I was the subject of complaints here I was also the subject of various complaints federally because, of course, Nick Xenophon jumped around between the state and federal arena a little bit.

The matters of general complaint were also the quite extraordinary allegations and investigative work that I think it was Michael Owen, then at The Australian, undertook in finding some of Nick Xenophon's links to questionable student accommodation here in South Australia. Certainly not my words, but the words of Michael Owen were 'slum lord' or I think rebutting allegations of being a slum lord were used. We of course looked into that and discussed with our members—all 180,000 trade union members in South Australia—just exactly what that meant for them and their access to safe and secure housing.

There was also the quite extraordinary decisions taken in the federal parliament around support for the Star Chamber aspects, the interrogation aspects, the lack of right to silence aspects of the Australian Building and Construction Commission taken by Nick Xenophon, now Huawei lobbyist. They were the subject of those disputes. Cause notices have also been issued at various times, but it is probably not surprising that they were not followed through with because a significant aspect of our defamation laws is truth as a defence. When truth is on your side, you know that you can hold your head high. I think, Chairman, it is probably fair to take that as a comment rather than as a question.

The committee divided on clause:

Ayes 24

Noes 20

Majority 4

AYES
Basham, D.K.B. Bell, T.S. Chapman, V.A.
Cowdrey, M.J. Cregan, D. Duluk, S.
Ellis, F.J. Gardner, J.A.W. Harvey, R.M. (teller)
Knoll, S.K. Luethen, P. Marshall, S.S.
McBride, N. Murray, S. Patterson, S.J.R.
Pederick, A.S. Pisoni, D.G. Power, C.
Sanderson, R. Speirs, D.J. Tarzia, V.A.
van Holst Pellekaan, D.C. Whetstone, T.J. Wingard, C.L.
NOES
Bedford, F.E. Bettison, Z.L. Bignell, L.W.K.
Boyer, B.I. Brock, G.G. Brown, M.E.
Close, S.E. Cook, N.F. Hildyard, K.A.
Hughes, E.J. Koutsantonis, A. Malinauskas, P.
Michaels, A. Mullighan, S.C. Odenwalder, L.K.
Piccolo, A. Picton, C.J. (teller) Stinson, J.M.
Szakacs, J.K. Wortley, D.
PAIRS
Teague, J.B. Gee, J.P.

Clause thus passed.

Progress reported; committee to sit again.

Sitting suspended from 12:59 until 14:00.

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