Editorial: Electoral Act needs to change

EDITORIAL: Premier Will Hodgman’s commitment to review Tasmania’s seriously outdated Electoral Act is a welcome move.

THE Mercury welcomes Premier Will Hodgman’s commitment to review Tasmania’s seriously outdated Electoral Act.

As we were forced to point out so dramatically on election day by running an apology to our readers on our front page, the Act is undemocratic. As the Premier indicated in his speech to Parliament on Wednesday, it might also be unconstitutional.

MORE: OUTDATED ELECTORAL LAWS SET FOR AXE

The central issue is this: the anachronistic Section 198 of the Electoral Act — first drafted decades ago and still bizarrely on the books — means that the editor of the Mercury would be liable for a fine of $15,900 and/or three months in jail should we report on any polling day (including tomorrow, with the Upper House by-elections) about any candidate or on any issue relating to the election. The ban applies to all newspapers. There are no such limitations on television or radio — or indeed anybody else, with everybody other than “newspapers” free to publish whatever they like on polling days in Tasmania, on any non-newspaper platform. That means that there is also no restriction on commentary on social media, on which — of course — far more outrageous claims can be made.

The current Electoral Act was passed in 2004 as a rewritten update of the 1984 legislation. The update was clearly either hastily or lazily done, as while the Act uses the term “newspaper” it also fails to define what a newspaper is. Does it include our website? Our app? Our mobile site? There has only ever been one definition of a “newspaper” in any Tasmanian Act — the Printers and Newspapers Act 1911. It defined a newspaper to be “every paper or pamphlet … containing any public news … at a price of sixpence or any less amount”. But alas, that law was repealed in 1998 — six years before the latest update of the Electoral Act was passed by State Parliament.

It’s all such a bizarre scenario that many have asked why the Mercury just didn’t go ahead and ignore the ban. The answer is it was made very clear to us on numerous occasions that the Electoral Commissioner Andrew Hawkey would enforce the ban if it was breached. And that would not be without precedent. In 2006, the Advocate was fined $5000 for running an image of a candidate on polling day. No such blackout on news reporting exists anywhere else in Australia. The Mercury looks forward to its removal.

The Premier has also indicated he wants another change to the Act: the removal of an anomaly that bans the “publishing” — but not broadcasting — of election attack ads without the written consent of the candidate being challenged. Consistent with the principles of modernity and free speech that underpin our arguments relating to Section 198, the Mercury would support this change.

And the Mercury certainly backs the Premier’s other request of the Justice Department as part of the review — that Tasmania should introduce its own political donation disclosure laws, rather than using the Commonwealth’s as the default. In other states, this change has resulted in much stricter and more open rules. Considering the controversy around the gaming lobby’s backing of the Liberals at the recent state election, this change would also be a welcome one.