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Election Campaigns - Application of Section 196 of the Electoral Act

Cassy O'Connor MP  -  Thursday, 17 September 2020

Tags: Freedom of Speech


The Director of Public Prosecutions confirmed yesterday he would not be pressing charges against the Greens over a Facebook post during the Huon election campaign which rightly pointed out Labor candidate Dr Bastian Seidel's compromised position on poker machines. Despite Labor's sensitivity on this issue and subsequent complaint to the Tasmanian Electoral Commission, we have been vindicated in refusing to remove the post on the basis of the constitutional freedom of political expression.

Section 196 of the Electoral Act has consistently been used to prevent legitimate political discourse during election campaigns and now it is found to have been misapplied. This has had a chilling effect on freedom of speech. We had the resources to take this case on but many individuals and community groups do not.

Given the DPP has not upheld Labor's complaint and the TEC referral, will you write to the commission highlighting the DPP's decision as guidance for all future interpretations of this arcane provision in an outdated act? Further, do you agree that section 196 must be amended or repealed to ensure legitimate debate during election campaigns?



Madam Speaker, I thank the Leader of the Greens for her question and confirmation that she does agree with free speech, which is a longstanding principle that our Government supports. It confirms that the Greens cannot have it both ways. You cannot just extract certain things out of the Electoral Act that you think should apply to yourself but not to other people. It confirms the complete double standards of the Greens.

In addressing the question, I do not direct the Tasmanian Electoral Commissioner -

Ms O'Connor - I didn't suggest you do - guidance.

Ms ARCHER - I know you did not suggest that but I am confirming for the benefit of the House that the Tasmanian Electoral Commissioner is, as members know, an independent statutory holder. I do not direct, control or seek to influence him in any way or his decision-making capacity. I am sure the commissioner watches very closely all matters that are referred to the DPP, or any other body for that matter, that are the subject of matters he has had a role in. I am sure he will observe that decision.

Ms O'Connor - That section was used to shut down people in Glamorgan Spring Bay during a local government by election. It is frightening.

Ms ARCHER - Well, it is frightening when you prevent free speech, isn't it?

Ms O'Connor - It's chilling that you have an act that stymies freedom of expression.

Madam SPEAKER - Ms O'Connor, could you do that through the Chair, please?

Ms ARCHER - We have it on the record from the Leader of the Greens that she does not want to stymie freedom of expression. We will remember that.

Dr Woodruff - Then you should repeal the anti protest legislation, if that is your view.

Madam SPEAKER - Order, Dr Woodruff.

Ms ARCHER - We will remember that throughout the debate on many an issue in this House and outside the House. It is good to have the Greens on record on that particular issue.

I do not seek to reflect on yesterday's debate other than the general principles and the general statement in confirmation from the Premier on numerous occasions in question time this week that once we have formed a view on the final report in relation to the Electoral Act we will release the report at that stage. It confirms that this is not a simple matter. It confirms that this is a more complex matter.

Ms O'Connor - Section 196 is a straightforward matter.

Ms ARCHER - Madam Speaker, the Leader of the Greens is referring to one particular section that is contained in an act that the review looks at holistically. If the Greens want to cherry-pick issues that is a matter for them. That is not going to be the Government's approach. We will take a well-considered approach and a very close look at what is a complex matter which the Greens have referred to today.