Elections watchdog denies targeting former NBA player Andrew Bogut over social media post

A decision by the Victorian Electoral Commission to warn former basketballer Andrew Bogut over a video he posted on social media has drawn attention to a two-decade old law requiring political speech in Victoria to come with a formal authorisation.

Bogut received a written warning from the state’s elections regulator saying he had failed to comply with the Electoral Act by posting the video on Instagram without saying where the video came from, and that any future non-compliance could lead to legal action.

Bogut, in a game for the Golden State Warriors against the Denver Nuggets in 2019.Credit: Jeff Chiu

The VEC said it responded to all complaints and denied it had targeted the sportsman, but Liberty Victoria said the episode highlighted that the Victorian law had not kept pace with the social media age, and the warning was heavy-handed.

“Social media, including Twitter, is full of political content across the spectrum, including statements to “vote out” particular politicians,” Liberty Victoria president Michael Stanton said.

Electoral law expert Professor Graeme Orr, from the University of Queensland, said the video was “hardcore electioneering” and the law existed to inform the public who was behind election material.

The video, which Bogut posted in October last year, called the Victorian government corrupt and urged people to vote out the upper house crossbench MPs who were supporting the pandemic laws that transferred power to the state’s health minister.

Bogut, who has been publicly critical of the state government during the pandemic, said a friend sent the video to him and, because he agreed with the video’s message, he agreed to post it. He sees the commission’s warning as an attempt to silence his opinions.

“I’m an individual citizen of Australia and Victoria, and all I voiced was an opinion to out the government at any cost,” he said.

Electoral Commissioner Warwick Gately said free speech was important, but if a person published an opinion that is intended or likely to affect how someone votes in an election, it must be properly authorised.

“That’s the law, and it applies to all of us, whether they be a media personality, a member of the public, political party or candidate in an election,” Mr Gately said.

Bogut said if that was the law, then “the whole of Twitter should receive a letter”.

“So I guess every citizen in Australia better read the EC [electoral commission] rules every few months, right? Laughable,” he said.

The video was linked to a now defunct website, votethemout.com.au, run by a group called Small Business Australia, whose executive director Bill Lang fronts a new political party called The Victorians Party.

A snapshot of the website’s history shows there was an authorisation attributed to a company – Canvas Deep Pty Ltd – but the commission wasn’t satisfied with that as the law requires an individual’s name.

Andrew Bogut dunks next to New Orleans Pelicans’ Dante Cunningham during NBA playoffs.Credit: AP

Canvas Deep’s director, Matt Wong, founded media company Discernable, which produces videos. Mr Wong also hosts a podcast that features guests including academics, lawyers and prominent Australians. Monica Smit, who later founded Reignite Democracy Australia, an anti-lockdown and COVID-19 conspiracy group that Mr Wong said he is not associated with nor supports, featured on six episodes.

Bogut said he had no formal affiliations with any political party, and a spokesperson for Mr Lang said there was no relationship with Bogut.

Mr Stanton said the Electoral Act may need to be reformed to include social media as an exception, as Bogut could display the same message on a car sticker or clothing – for example – without contravening the act.

“This appears to be a heavy-handed approach,” Mr Stanton said.

Liberal MP Bev McArthur said the VEC got it wrong with its approach to Bogut.Credit: Eddie Jim

“Mr Bogut should not be held to a different standard because of his profile.”

Professor Orr said the law exists to ensure people know who is behind election material, to ensure material can be traced if it’s defamatory, and to track campaign spending and political donations.

”You just have to be clear and open. Even if it feels like a technicality to you, there are reasons for the law to exist,” Professor Orr said.

Fiona Patten, one of the upper house MPs that was the focus of the video, said the origin of the video wasn’t clear, and it looked like an ad.

“This isn’t about silencing anyone, it’s not about censoring anyone, it’s just saying, when it’s election campaign information, you must identify the author,” Ms Patten said.

Victorian Liberal MP Bev McArthur, who served as deputy chair in an inquiry into the impact of social media on elections, said the commission was in the wrong.

“Simply using the phrase ‘vote out’ cannot be enough to engage our electoral laws – political social media is full of commentary like this, and especially outside of election time it is nothing more than personal commentary,” she said.

Ms McArthur said the commission should focus on regulating blatant and deliberate attempts at misinformation.

“In the current climate, it will undoubtedly be construed as politically motivated, risks inspiring mistrust and damaging rather than protecting democratic discourse,” she said.

Mr Gately said authorisation was simple and only required a person to add a name and an address to ensure the public knew who was behind the commentary.

He said Bogut was not treated differently.

“If we receive a complaint, we respond,” he said.

The commission said it received 244 complaints about lack of authorisation during the 2020 local government elections.

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