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senate vote 2017-09-11#5
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mackay staff
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2023-10-20 12:10:41
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Title
Bills — Electoral and Other Legislation Amendment Bill 2017; in Committee- Electoral and Other Legislation Amendment Bill 2017 - in Committee - Robocall amendments
Description
<p class="speaker">Nick Xenophon</p><p>by leave—I move amendments (1), (2), (3) and (4) on sheet 8229 standing in my name:</p>-
- The majority voted against [amendments](https://www.openaustralia.org.au/senate/?gid=2017-09-11.34.1) moved by South Australian Senator [Nick Xenophon](https://theyvoteforyou.org.au/people/senate/sa/nick_xenophon), which means they failed.
- ### What did these amendments do?
- Senator Xenophon [explained that](https://www.openaustralia.org.au/senate/?gid=2017-09-11.34.1):
- > *These are what would colloquially be known as the 'robocall amendments'. These amendments relate to bulk voice calls. What these amendments essentially do is the following. If a notifying entity communicates or approves the communication of an electoral matter to a person by bulk voice call—that is, a robocall—the notifying entity must ensure, essentially, that upfront you are told who is the body responsible for it, whether it is the Liberal Party, the Labor Party or a union. It is all about ensuring that upfront you know who is authorising the call. Secondly, the important safeguard is that you are then given an option to specifically opt in if you want to take that call. This amendment is technology-neutral in relation to that, but you can decide—it could be a voice command for yes or no, or 'Press 1 to hear the rest of the call.'*
- ### Amendment text
- > *(1) Schedule 1, page 11 (after line 7), after subclause 321D(5), insert:*
- >
- >> *Bulk voice calls*
- >>
- >> *(5A) If a notifying entity communicates, or approves the communication of, electoral matter to a person by bulk voice call, the notifying entity must ensure that:*
- >>
- >>> *(i) the particulars required to be given in respect of that communication by subsection (5), or any other particulars determined under subsection (7) for the purposes of subsection (5), are given at the beginning of the call; and*
- >>>
- >>> *(ii) immediately after those particulars are given, a statement is given that the call is an automated political call and the call will not proceed unless the recipient of the call takes the necessary steps to allow the call to proceed.*
- >>>
- >>> *Note: This provision is a civil penalty provision which is enforceable under the Regulatory Powers Act (see section 384A of this Act).*
- >>>
- >>> *Civil penalty: 120 penalty units.*
- >>
- >> *(5B) A notifying entity contravenes this subsection if:*
- >>
- >>> *(a) the notifying entity communicates, or approves the communication of, electoral matter to a person by bulk voice call; and*
- >>>
- >>> *(b) the notifying entity has not ensured that a facility is available to the recipient of the call to enable the recipient to take steps to:*
- >>>
- >>>> *(i) allow the call to proceed; or*
- >>>>
- >>>> *(ii) terminate the call.*
- >>>>
- >>>> *Note: This provision is a civil penalty provision which is enforceable under the Regulatory Powers Act (see section 384A of this Act).*
- >>>>
- >>>> *Civil penalty: 120 penalty units.*
- >
- > *(2) Schedule 1, item 10, page 12 (line 3), after "(5)", insert ", (5A) or (5B)".*
- >
- > *(3) Schedule 1, item 10, page 12 (line 19), after "(5)", insert ", (5A) or (5B)".*
- >
- > *(4) Schedule 1, item 30, page 27 (after line 7), after subclause 110C(5), insert:*
- >
- >> *Bulk voice calls*
- >>
- >> *(5A) If a notifying entity communicates, or approves the communication of, referendum matter to a person by bulk voice call, the notifying entity must ensure that:*
- >>
- >>> *(i) the particulars required to be given in respect of that communication by subsection (5), or any other particulars determined under subsection 321D(7) of the Commonwealth Electoral Act 1918 for the purposes of subsection (5), are given at the beginning of the call; and*
- >>>
- >>> *(ii) immediately after those particulars are given, a statement is given that the call is an automated political call and the call will not proceed unless the recipient of the call takes the necessary steps to allow the call to proceed.*
- >>>
- >>> *Note: This provision is a civil penalty provision which is enforceable under the Regulatory Powers Act (see section 140AAA of this Act).*
- >>>
- >>> *Civil penalty: 120 penalty units.*
- >>
- >> *(5B) A notifying entity contravenes this subsection if:*
- >>
- >>> *(a) the notifying entity communicates, or approves the communication of, referendum matter to a person by bulk voice call; and*
- >>>
- >>> *(b) the notifying entity has not ensured that a facility is available to the recipient of the call to enable the recipient to take steps to:*
- >>>
- >>>> *(i) allow the call to proceed; or*
- >>>>
- >>> *(ii) terminate the call.*
- >>>
- >>> *Note: This provision is a civil penalty provision which is enforceable under the Regulatory Powers Act (see section 140AAA of this Act).*
- >>>
- >>> *Civil penalty: 120 penalty units.*
<p class="italic">(1) Schedule 1, page 11 (after line 7), after subclause 321D(5), insert:</p><p class="italic"> <i>Bulk voice calls</i></p><p class="italic">(5A) If a notifying entity communicates, or approves the communication of, electoral matter to a person by bulk voice call, the notifying entity must ensure that:</p><p class="italic">(i) the particulars required to be given in respect of that communication by subsection (5), or any other particulars determined under subsection (7) for the purposes of subsection (5), are given at the beginning of the call; and</p><p class="italic">(ii) immediately after those particulars are given, a statement is given that the call is an automated political call and the call will not proceed unless the recipient of the call takes the necessary steps to allow the call to proceed.</p><p class="italic">Note: This provision is a civil penalty provision which is enforceable under the Regulatory Powers Act (see section 384A of this Act).</p><p class="italic">Civil penalty: 120 penalty units.</p><p class="italic">(5B) A notifying entity contravenes this subsection if:</p><p class="italic">(a) the notifying entity communicates, or approves the communication of, electoral matter to a person by bulk voice call; and</p><p class="italic">(b) the notifying entity has not ensured that a facility is available to the recipient of the call to enable the recipient to take steps to:</p><p class="italic">(i) allow the call to proceed; or</p><p class="italic">(ii) terminate the call.</p><p class="italic">Note: This provision is a civil penalty provision which is enforceable under the Regulatory Powers Act (see section 384A of this Act).</p><p class="italic">Civil penalty: 120 penalty units.</p><p class="italic">(2) Schedule 1, item 10, page 12 (line 3), after "(5)", insert ", (5A) or (5B)".</p><p class="italic">(3) Schedule 1, item 10, page 12 (line 19), after "(5)", insert ", (5A) or (5B)".</p><p class="italic">(4) Schedule 1, item 30, page 27 (after line 7), after subclause 110C(5), insert:</p><p class="italic"> <i>Bulk voice calls</i></p><p class="italic">(5A) If a notifying entity communicates, or approves the communication of, referendum matter to a person by bulk voice call, the notifying entity must ensure that:</p><p class="italic">(i) the particulars required to be given in respect of that communication by subsection (5), or any other particulars determined under subsection 321D(7) of the <i>Commonwealth Electoral Act 1918</i> for the purposes of subsection (5), are given at the beginning of the call; and</p><p class="italic">(ii) immediately after those particulars are given, a statement is given that the call is an automated political call and the call will not proceed unless the recipient of the call takes the necessary steps to allow the call to proceed.</p><p class="italic">Note: This provision is a civil penalty provision which is enforceable under the Regulatory Powers Act (see section 140AAA of this Act).</p><p class="italic">Civil penalty: 120 penalty units.</p><p class="italic">(5B) A notifying entity contravenes this subsection if:</p><p class="italic">(a) the notifying entity communicates, or approves the communication of, referendum matter to a person by bulk voice call; and</p><p class="italic">(b) the notifying entity has not ensured that a facility is available to the recipient of the call to enable the recipient to take steps to:</p><p class="italic">(i) allow the call to proceed; or</p><p class="italic">(ii) terminate the call.</p><p class="italic">Note: This provision is a civil penalty provision which is enforceable under the Regulatory Powers Act (see section 140AAA of this Act).</p><p class="italic">Civil penalty: 120 penalty units.</p><p>These are what would colloquially be known as the 'robocall amendments'. These amendments relate to bulk voice calls. What these amendments essentially do is the following. If a notifying entity communicates or approves the communication of an electoral matter to a person by bulk voice call—that is, a robocall—the notifying entity must ensure, essentially, that upfront you are told who is the body responsible for it, whether it is the Liberal Party, the Labor Party or a union. It is all about ensuring that upfront you know who is authorising the call. Secondly, the important safeguard is that you are then given an option to specifically opt in if you want to take that call. This amendment is technology-neutral in relation to that, but you can decide—it could be a voice command for yes or no, or 'Press 1 to hear the rest of the call.'</p><p>What we are seeing with robo-calls is that you get a spiel that goes on for quite a while. At the end of it, you find out who is authorising it. I think that the party responsible—that is, the entity responsible—should be upfront as to who is behind the robo-call. The voter should get a chance to decide whether they want to hear that call. The method of authorisation, the method of giving voters the power to say yes or no to that call, ought to be reformed. That is what this particular amendment seeks to do. Otherwise, I think this will be an increasing issue. Of course, this does not constrain political communication. What it does is give the power back to the voter—firstly, to know who is authorising these calls upfront and, secondly, to make a decision as to whether they want to hear the message.</p> <p class="speaker">Mathias Cormann</p><p>The government's bill already extends the authorisation of electoral matters to include bulk voice calls for the first time. In fact, that is one of the key features of the legislation in front of us. The bill allows the Electoral Commissioner, by legislative instrument, to determine further requirements in relation to the particulars announced as part of the authorisation. This allows the Electoral Commissioner to update requirements in response to changing circumstances and new technology and ensures the requirements are appropriate for the medium used to communicate the message. While it would ultimately be a matter for the commissioner, the logical place for the authorisation of such communication is, in our view, at the start of a call, but that is not something that the parliament needs to get itself involved in. We should leave that to the independent judgement of the Electoral Commissioner, as is the case in relation to authorisation arrangements and particulars of authorisation requirements more generally.</p><p>In just picking up on the point that Senator Xenophon has made about empowering the voter, the voter is, of course, empowered. The recipient of any phone call is able to hang up at any time. We don't believe it is necessary to amend the bill to require the recipient of a bulk voice call to take necessary steps in order for the call to proceed. We would encourage anyone who receives a phone call in relation to a political communication that they don't approve of to just hang up. For these reasons, the government does not support this amendment at this time.</p> <p class="speaker">Don Farrell</p><p>The opposition will not be supporting the amendments. We've only just received them in the last few minutes. If Senator Xenophon was serious about these amendments then he would have at least started some meaningful discussions about them. We don't believe the provisions suggested by Senator Xenophon would assist in fostering genuine political communications. As Senator Cormann noted, if you don't like the contents of the robocall, you can simply hang up.</p><p>The Australian Electoral Commission is provided with significant powers in this bill, as a result of the work of the JSCEM committee. I'm not sure whether any member of the Xenophon team seriously participated in that process, but those people who did so have come forward with a significant and meaningful piece of legislation. As I said, the Australian Electoral Commission is provided with significant powers in this bill to determine the intricacies of political authorisation, and we trust that it will do so appropriately.</p> <p class="speaker">Nick Xenophon</p><p>Given that there will be regulations around this bill, I ask: does the government, as a matter of principle, at least consider at this stage the merit of an authorisation being required upfront—in other words, so that the voter knows upfront who is making the call—rather than a minute or two later? It's pretty obvious, if the robocall starts off with, 'This is Malcolm Turnbull', or, 'This is Bill Shorten', who is authorising it—</p> <p class="speaker">Richard Di Natale</p><p>The Minerals Council!</p> <p class="speaker">Nick Xenophon</p><p>I will ignore that very cynical interjection from Senator Di Natale!</p><p class="italic">Senator Di Natale interjecting—</p><p>Even in those cases, maybe there are some people in this country who don't know who Malcolm Turnbull or Bill Shorten are—not many, but there might be a couple. So, can the government indicate (a) whether they consider there is merit in what is being proposed, at least in relation to the issue of the upfront authorisation, and (b) whether the regulations would have the scope to allow for upfront authorisations to be embedded in the regulations?</p> <p class="speaker">Mathias Cormann</p><p>I actually directly addressed that point in my initial comments to your amendments, Senator Xenophon. Just to make it clear again: this bill gives the Electoral Commissioner the power to make a legislative instrument prescribing certain matters. It doesn't mean that the Electoral Commissioner has to exercise these powers, but he can. The legislative instrument can prescribe, amongst other things, a requirement in relation to when and how the authorisations in the context of voice calls are most appropriately made.</p><p>As I said in my remarks, while it would ultimately be a matter for the Electoral Commissioner, the government certainly agrees that the logical place for the authorisation of such communication to take place is at the start of the call. But we believe that the legislation in front of the parliament, which responds to relevant recommendations from the Joint Standing Committee on Electoral Matters and extends, for the first time, the authorisation of electoral matter to include bulk voice calls, gives the Electoral Commissioner all of the necessary powers which he or she exercises independently to make relevant arrangements in relation to the authorisation of robocalls.</p> <p class="speaker">Jacqui Lambie</p><p>We all know that everything takes time, whether it's up here or elsewhere; the robocalls are already over and done with; and then the Electoral Commissioner takes a week or two to get on to it and to all the complaints he has finally got. Does the commissioner have a time line for answering or for doing something about this? Or have we not struck those laws yet?</p> <p class="speaker">Mathias Cormann</p><p>The Electoral Commissioner is an independent statutory officer and that is as it should be, because while all of us are actors in the political process, it's very important for the Electoral Commissioner to exercise his responsibilities independently. If this bill is passed by the parliament, and based on the indications so far it will be, then the Electoral Commissioner will have the opportunity to make certain arrangements around authorisation requirements. But it will be a matter for him—if, how and when he chooses to exercise those powers.</p> <p class="speaker">Jacqui Lambie</p><p>I just wanted to clarify that, Minister. So there is no time line, so he can either do it today, or he can do it in two weeks time. I'm just not sure how this is supposed to help the situation: if you don't have a time frame around when he's supposed to act on what he has been told about these robocalls, then what's the point of it?</p> <p class="speaker">Mathias Cormann</p><p>The point is, what the government is doing here in good faith is responding to the recommendations from the non-partisan, cross-party Joint Standing Committee on Electoral Matters by modernising authorisation requirements to ensure that new methods of communications are appropriately catered for. But in the end, yes—as it was before—the Electoral Commissioner continues to be independent. He is not forced to make certain determinations. He will have the option to make certain determinations but, ultimately, it is a matter for his independent judgement. From the government's point of view—and I'm sure that the opposition would have the same view—we think it is very important for the Electoral Commissioner to continue to exercise his statutory responsibilities independently and not be subject to political direction from anyone.</p> <p class="speaker">Linda Reynolds</p><p>The question is that the amendments moved by Senator Xenophon be agreed to.</p> -
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