Posters and flyers spreading extreme anti-LGBT views and falsehoods about same-sex marriage would not be stopped even if advertising protections from the Electoral Act was applied to the government's unprecedented national survey.
Since the survey on same-sex marriage was announced in August, a slew of posters and flyers denigrating LGBT people and their relationships have surfaced around Australia. Many of these have been distributed anonymously.
The survey is currently not subject to the protections in the Electoral Act. Finance minister Mathias Cormann has flagged legislation to strengthen electoral provisions for the survey. Cormann said on Thursday that he would reach out to the opposition and the crossbench parties to work on the legislation after the High Court gave the green light for the postal survey to go ahead.
But in a senate committee hearing on the postal survey on Thursday morning, the chief legal officer of the Australia Electoral Commission, Paul Pirani, confirmed that even if the Electoral Act was applied to the survey, it wouldn't affect the content of the anti-LGBT posters and flyers.
"The Electoral Act is mainly aimed at ensuring people are made aware of the source of electoral advertisements, rater than dealing with the actual contents of the electoral advertisement," Pirani said.
This has been the case for at least 40 years, the committee heard.
Pirani also said it was unusual to have advertising targeting ordinary citizens, as opposed to candidates for office or political parties.
Labor senator Jenny McAllister asked specifically if the posters and flyers submitted to the committee by the NSW Gay and Lesbian Rights Lobby, which includes a poster allegedly distributed by a Neo-Nazi group that BuzzFeed News chose not to publish, would be in any way affected by Cormann's proposed legislation.
"If the provisions were to mirror what’s in the Electoral Act, it still wouldn’t deal with the actual content," Pirani said.
"It would deal with making sure people are aware who has authorised it, who has caused it to be published, and if a person believes they’ve ben defamed or a legal [issue] has occurred in relation to the advertisement, then they’d be able to take their own legal action, which includes that state anti-discrimination boards."
Pirani said the "most misunderstood provision" in the Electoral Act is regarding misleading and deceptive advertising, which deals with misleading people in how they cast their vote, rather than the general contents of an advertisement.
He also noted that the biggest difficulty in terms of advertising faced by the AEC is when it is distributed anonymously — like much of the postal survey material.
"Political parties generally play the game and comply,” he said.
“The main areas where we have concerns and where it’s been difficult for us to administer is where we get truly anonymous advertising.”
Speaking to Sky News earlier this week, Cormann said "expression of opinion in a political process is not something that is new".
"We have said as a Government that we want campaigners on both sides of the debate to engage in this debate with courtesy and respect," he said.
"But ultimately, whether it is an election or whether it is a survey conducted by the ABS as we have in front of us, there are certain limits to the limits you can place on freedom of speech."
The committee also heard that at least $14.1 million has already been spent on the postal survey. If it is knocked down in the High Court this afternoon, that money will not recoverable.
Australian Statistician David Kalisch was asked about comments made before the Court on Wednesday by solicitor-general Stephen Donaghue, who suggested the Australian Bureau of Statistics may not be prevented from running the survey even if the $122 million of government funding is disallowed.
Kalisch said the ABS would require funding in order to do the survey, but stopped short of saying it would need the entire $122 million.
Lane Sainty is a reporter for BuzzFeed News and is based in Sydney, Australia.
Contact Lane Sainty at firstname.lastname@example.org.
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