Legislative Council, Wednesday 23 October 2024

Ms FORREST (Murchison) - Mr President, perhaps some of us would not have quite expected this bill to come on so quickly, and so may not be fully prepared. However, I also recall the long and somewhat tortuous debate we had on the electoral reform in 2023, where we are now blamed for not respecting the wishes of the government at the time and not removing section 196 as the government had sought to do.

I acknowledge the information provided in the briefing today and also the TLRI's work. Its work is very important to inform the law reform in this place. We need to be very cautious here about not taking things in isolation.

We have all, in this place, obviously faced elections and some of us more than others, particularly the member for Elwick in her very recent election faced significant abuse of her image and name in the course of the election period, with very little recourse and very little protection.

As is mentioned in the briefing, with the very rapid emergence and development of AI, particularly generative AI, we are now greatly at risk of our images, and any candidate's image, being used to generate images that may be less than flattering. I know this has been raised with legitimate and genuine concern. It is a big and wicked problem. It does not apply only to candidates standing for election, it applies to everyone in every area of our lives. It is a problem much bigger than this, but, and I say but, when someone is standing for election there, and most of us - I would say all of us - work really hard during an election campaign period to get out and knock on doors, try to meet as many people as you can, and I speak particularly for the member for McIntyre and me, we have massive electorates. This is in our House; other members in other places have larger geographic electorates, but often a team unless you are an independent standing in those, but the only independent member we have is in the tiniest electorate that you could literally just about spit over. So to actually think that I, or the member for McIntyre in particular there are others who have big electorates too could actually go out and knock on every door so people can see what we look like, ask us where we stand on things, correct any misrepresentations that may have been put out there, is a nonsense.

Okay, we can write opinion pieces, we can write letters to the editor, we can put out our own flyers with our information, we know how effective that cannot be sometimes. If you are using Australia Post because we literally cannot doorknock every door or drop them in every letterbox, I have seen Australia Post, with one of my elections, dump in the gutter a pile of my flyers that were paid to be delivered.

Mrs Hiscutt - I have seen it, too

Ms FORREST - And it is even worse now to try use Australia Post, because the only time they deliver into someone's letterbox is if there is other mail going in too. We know now there is less snail mail, hard mail going into letterboxes. To think someone's image or name misrepresented in this way can be adequately dealt with through other mechanisms, I would argue. In the briefing and from what other members have said, it has been put you can use other mechanisms to deal with this. I would dispute that. Sometimes the comments of others trying to reflect on a position you may have on something can help your campaign when they are completely off the mark and people know how stupid it is. However, you cannot rely on that. We have seen the emergence of fake news. We have seen political candidates in other jurisdictions blatantly lie and not be held to account.

Is it right to remove this provision now? I acknowledge the comments that we are unique, but sometimes as the wheel turns and circumstances change, Tasmania may be unique in providing this last ditch protection. With the emergence of AI to the degree it has and the capacity to broadcast false or misleading information - we do not have truth in advertising legislation, which we could have had but do not. That is sadly not brought in with an amending bill, though the government could have, but chose not to. I do not know that it is right to remove this last bit of protection without some other form of protection, whether it is another a piece of legislation, even at the federal level, that deals with some of these very real and difficult problems. I also know we do not want to stymie political expression and debate. Democracy relies on that. It is critical to democracy. We can have the contest of ideas and we can have other viewpoints being put forward. I would hope they would be put forward in a truthful manner, but sadly they are not.

In my most recent election, another candidate was doing all sorts of TikToks - I do not use TikTok, but that was the main platform for this person - that were completely wrong. Most people knew that what this person was saying. There are not a huge number of people in my electorate who use TikTok.

Ms Rattray - There are so many people who are not engaged and would not know whether it is right or wrong.

Ms FORREST - There are a lot of young people on TikTok, some of them too young to vote, who are influenced. This is why people are called influencers. They are on TikTok and the other socials influencing people. They influence people with lies as much as they influence them with the truth. Even though most people knew and would not have to look too far to check if this person's comments about me were correct and that this person got the wrong end of the stick and misunderstood the reality, deliberate or not. It may have been an innocent error on their part, I do not know. In any event, there were suggestions that I had acted inappropriately, almost corruptly. It was weird stuff.

The point is, I chose not to respond or engage as I thought the reach, in my humble opinion, was not that broad. I felt that my community knew me better than that. I had the advantage of 18 years of service to those people. They had ample opportunity to find out what I really did think. I am visible on my social, not on TikTok, but on Facebook, LinkedIn. I keep off that horror show X.

Ms O'Connor - Twitter. We still call it Twitter.

Ms FORREST - I call it X because it is horror show; the former thing called Twitter.

Ms O'Connor - He is a terrible person.

Ms FORREST - Yes, absolute misogynist. Anyway, not to be diverted.

I chose not to respond for those reasons. But if I was a brand new candidate, someone out there trying to unseat me. I would hope that what is put out there about them is true and fair to them, so they have got a red hot chance of being understood as they are. And if they beat me, well, all power to them. Good on them, but for a new person coming up, wanting to actually put themselves out there, and the risk of absolute falsity being put about in an advertisement or in a 'how to vote' card. I could see the argument around the 'how to vote' card business. But, in Legislative Council elections, you cannot even use 'how to vote' cards. Well, you can use them, but you cannot use them on Election Day.

Ms O'Connor - You cannot use them in a state election either.

Ms FORREST - No, but be we cannot even stand outside an electoral booth.

Ms O'Connor - Federal you can, but in any state election.

Ms FORREST - My mistake, sorry, that is right you cannot either.

Ms O'Connor - Which is a good thing.

Ms FORREST - It is a good thing. It is quite intimidating. Even if you know how you are voting and you can eyeball them and say, do not. Most people do not like to eyeball them, they feel quite intimidated, sadly. So that is a good provision. I was getting the federal and state mixed up there.

I wanted to read from the email here. I was going take bits of it, but because I got to my feet first, I have not had time to organise my thoughts. This only arrived from, and my members would know, our former anti-discrimination commissioner, Dr Robin Banks. She sent an email that I thought is worth considering in relation to this bill, shortly to be presented before the council for debate. It was sent at 11.12 a.m., less than an hour ago. [tbc 12.53]

As you recall, I made a submission to the current inquiry to the Joint Standing Committee on Electoral Matters …

I did not know that because I am not on that committee, but that is fine.

… and that includes consideration of Section 196 of the Electoral Act.

And she tells where submissions are available.

I note that the bill has had a very easy passage to the House of Assembly, and urge you to ensure it gets more fulsome consideration in the Legislative Council.

While there may be concerns about interpretation of the provision in its current form, including its impact on our implied right to freedom of political and government communication, such concern should be fully considered rather than simply removing one of the few potentially effective protections electors have against clear and unambiguous misleading conduct.

You will see in my submission that I addressed the argument that Section 197, …

This was referred to in the briefing, which relates to the process of elections rather than the candidates themselves.

… provides the protection, including that it is not a provision that could be readily acted on during the campaign period and that capacity is an important part of any protection.

I also note that as far as my research indicates, there have been no successful challenges to the current provisions on the ground that infringes on our implied freedom.

And, Mr President, that could be because it has not been tested, which is fine, but it is obviously not a major problem, but it does provide some notional protection.

Cases where breaches by legislative provisions of the implied freedom of political and governmental communication are raised to consider three questions.

1. Does the law effectively burden freedom of political communication?

2. Is the purpose of the law legitimate in the sense that is compatible with the maintenance of the constitutionally prescribed system of government?

3. Is the law reasonably appropriate and adapted to advance that purpose in a manner compatible with the maintenance of the constitutionally prescribed system of government?

That comes from Coleman versus Power and McCoy, 2004 HCA 39

In this case, it is clearly, arguably that Section 196 burdens freedoms on political communications as it limits what can be communicated in election campaigns. It is, however, equally clear that there is a legitimate purpose to the provision protecting electors from false and misleading communications that associate through name or image a particular candidate with specific views or conduct. This is an important protection in our constitutionally prescribed system of government. The third question is important and raises the question as to whether the provision could be improved. Considering such improvement could provide a mechanism that ensures the continued protection and alleviates concerns about impacts on the implied freedom. I note that the government has previously presented legislation that has subsequently been found by the High Court to infringe the implied freedom - the successful challenge the Workplaces (Protection from Protesters) Act 2014. Here we have a government seeking to use that very freedom to urge for reduced democratic protections. It would be appropriate for the Legislative Council to consider referral of this bill to the Joint Standing Committee on Electoral Matters. This would allow for full consideration of the arguments for and against the current proposed amendments and alternatives to overcome the concerns identified as the reason for the current amendment bill.(tbc)

I have read that email pretty much in full with a bit of paraphrasing and my own comments. So where to from here? The fact that this is part of the '2030 Strong Plan' -

Mrs Hiscutt - Where are my colleagues? I feel a bit lonely here.

Ms FORREST - Not one of them are here, Leader. They have all gone.

Is that a reason to pass it? No, absolutely not. Is it something that requires more thought. Does it require additional inclusions in the Electoral Act to ensure that if this protection - and it is a protection - is removed, that there is an adequate provision for protection through a truth-in-advertising requirement? I would possibly say 'yes' to that.

The other thing - and it was raised by the member for Nelson and was also a matter that crossed my mind as I spoke yesterday on the Judicial Commission Bill, not knowing that there had been an amendment downstairs - what gender impact assessment has been done on this? We know that women's appearances are commented on, critiqued, criticised and abused far more in public life than men. That is a reality. We know there has not been a gender impact assessment done on this, according to the information provided at the briefing. Without that, I do not think we can possibly proceed with this at this point. Either we leave it to sit, we refer it to a committee or we vote it down until that work has being done.

Ms O'Connor - What work, sorry?

Ms FORREST - A gender impact assessment. As I said, we know that women's images and women are abused far more than men in public life for their appearance, for how they speak, for what they say and for what they stand for. An example of that, in my very first election in 2005 and sometimes since then, I attended a candidate forum down in Circular Head. There were five candidates. We had to all speak to a number of questions, all run-of-the-mill sort of stuff. I cannot remember exactly what they were now because it was quite a long time ago, but they were particularly relevant at the time. I think one was around the protection of agricultural land policy, which is a pretty big thing at the time.

Then I had questions from the floor. One person stood up to ask a question and they wanted only me to answer it. What do you think that question might have been about? It was my view on abortion. They did not want to ask the four other men what their view was on abortion. They only wanted to hear mine. Now, how gendered is that? I got up and answered and one of the blokes who was sitting next to me said, 'jeez I am glad they did not ask me'. I felt like getting up and asking all the other three -

Sitting suspended from 1.00 p.m. to 2.30 p.m.

Ms FORREST (Murchison) - Before I was really interrupted by the 1 o'clock bell, I believe I was in full flight talking about whether or not a gender assessment is being done on this legislation that we are contemplating here. I was talking about my experience in my very first election, where I was the only candidate of five and the only woman, asked about my views on abortion. I was about to say I desperately wanted to jump to my feet and ask the other four male candidates what their view was. This is the sort of treatment that women get. We are singled out to ask the questions that are more contentious to try to put us on the back foot. You only have to look as far as our very first and only female prime minister, the disgraceful things that were said about her by the former leader of the opposition, Tony Abbott, and the number of people that commented on her appearance and the way she spoke. It is absolutely unacceptable and disgraceful. In that case it was Mr Abbott who had such vitriol in a number of occasions there. Sadly, what we also see sometimes is women attacking other women and it breaks my heart to think that is what goes on. I know that was the case for the member for Elwick and when there was another woman who was standing against me who chose to use those TikTok videos or whatever you call them.

In any event, I think there is pretty clear evidence that this provision in the Electoral Act that this bill seeks to remove - I do hear and acknowledge the TLRI's comments and recommendations that this be removed, but we should do so with great caution if we are to do that and make sure there are protections in place. We are seeing so many people harmed by social media and by other forms of online and AI abuse. I do not know if anyone in this Chamber has been, but anyone who has been impacted by the use of a deep fake would understand or hope that those who have not had an experience would appreciate how truly devastating that can be and we are seeing that used more and more particularly for young women and the lifelong trauma that causes people.

We need to be very careful we do not put adequate protections in a highly paced, fast moving world of AI and technology that has become very much part of election campaigns and those processes. The printed matter is the end result of that because you use generative AI to create an image or to create content. Some platforms will not allow you to do stuff that is obviously nasty, but it does not stop you doing things that are not true, unless there is some element to it that would sort of verge on criminality. That is not all platforms; that is just some of the ones that have perhaps more of a protective mechanism built into them.

I have concerns about this bill as it stands without truth-in-advertising provisions as well. I will listen to other members contributions on this. I do not think there is a rush to deal with this and to get it done because, really, the only reason it was put here, according to the Leader, was it was part of the 2030 Strong Plan and they committed to -

Ms O'Connor - It came up last year. It has been advocated for by the TEC for some time.

Ms FORREST - Yes, but without the rest of the recommendations that have been made in terms of truth in advertising and other spending caps and things like that, that your party has advocated for. Okay, we are just doing one thing in isolation here, why are we not looking at all those other things?

Ms O'Connor - Because there is no appetite from the major parties.

Ms FORREST - I know there is not, but that is not why we pass things in here, though. I do not care if there is no appetite from the major parties, but the member for Nelson has established the Electoral Matters Committee and, as I understand it, they are looking at a lot of these things. The lower House committee that looked at the Greens' bill also made reference to truth in advertising in their recommendations being looked at by that joint committee. I am concerned about dealing with this one standalone matter in isolation, but I will listen to other members and respect and acknowledge the TLRI's position on this. We have to proceed cautiously if we are not going to do the whole amount of reform required. That was the problem with that electoral donation bill, where there was a whole range of matters like spending caps and publicly funded elections, so they need to go together.

The member for Nelson did a huge amount of work trying to make that happen and the Labor Party at the time did it, but anyway we did not see some of that proceed and we end up with this half-baked electoral law. That is why I am saying - this on its own is problematic for me. If it was part of a bigger suite of legislative reform to address some of those very real challenges that were identified in this place at an earlier time, then I would probably be a bit happier, but at this stage I do not know that I can support it.

 

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