Australian Press Council submission to the Parliament of Victoria Electoral Matters Committee on its inquiry into provisions on misleading or deceptive electoral content in the Electoral Act 2002.

August 5, 2009

Executive Summary

The Australian Press Council makes two specific points:

• the Electoral Act should exclude from its ambit fair third party news reports, and commentary upon those reports; and
   
• if there is a decision to include a redress or corrections policy within the Act, the provisions of that policy should ensure that the person or entity responsible for the original statement is responsible for the publication of any correction.

Submission

The Council is concerned with ethical standards in the print media, in particular the editorial and article sections of newspapers and magazines. The Council does not usually concern itself with advertising or with the commercial operations of publications. In this instance, since the provisions generally address the ethical standards of candidates and political advertising, the main thrust of the inquiry lies outside the Council's general remit.

Nonetheless, the Council makes two specific points to the committee dealing with the provisions of the Act.

Fair reports

The Council is concerned that, under one reading of the current Bill, the news media or journalists employed by them could be subject to a prosecution under the Act for publishing a fair report of a third party during an election period. Given the importance of electors understanding the policies of candidates and the political issues at stake, it is imperative that the media be able freely to report matters of public concern. This right has been recognised by the High Court in several cases, unanimously in Lange, wherein the Court recognised that the right to freedom of communication in matters affecting elections is implied in the Australian Constitution. The High Court in Lange stressed that for the people to be able to make an informed choice as electors, legislative power "cannot support an absolute denial of access by the people to relevant information about the functioning of government in Australia and about the policies of political parties and candidates for election".

The provisions of the Electoral Act need to be amended to ensure that a fair and accurate third party report, made in good faith, of matters raised by candidates at an election, and commentary upon those reports, should be excluded from the ambit of the Act.

Corrections

While the current Act does not appear to contain any redress provision to provide for some form of correction of false or misleading material during an election, the Electoral Matters Committee may wish to consider such a proposal during its inquiry.

When discussing provisions of the federal Electoral Amendment (Political Honesty) Bill 2000, the Council expressed concern with an amendment that sought to give to the Electoral Commission and/or the Federal Court the power to request or order the 'advertiser' to publish a retraction in specific terms and specified manner and form, when what the commission believed to be false or misleading matter was published during an election.

Such a provision, in the Victorian Act, might have the unfortunate consequence of making the publisher of a newspaper or magazine, or the licence holder of a broadcaster, responsible for the publication or broadcast of a correction or clarification ordered by the commission or the court.

If any corrections or redress proposal is considered, the committee should recommend that the Act is worded to ensure that the person responsible for the original material, the advertiser in the case of commercial material or the individual who made the false statement, is responsible to the commission or the court for the publication of any correction of inaccurate or misleading statement.

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