The Palmer Blitz: Should There Be Limits on Political Advertising in Australia?

CommentaryIn the 2019 election campaign, billionaire Clive Palmer spent around $80 million (US$60 million) on advertising, including ubiquitous billboards and television and radio ads to promote his United Australia Party (UAP). Although the UAP ran candidates in all 151 electorates, it only received a primary vote of 3.4 percent and failed to elect any of its candidates. This year, the billboard advertising campaign has been reinstated, and television viewers are again bombarded with advertisements for the UAP. Zoe Samios and Lisa Visentin recently noted in The Sydney Morning Herald that Clive Palmer spends 100 times more than major parties on advertising, “putting him on track to fulfil his promise to run the most expensive election campaign in the nation’s history.” The advertisements for the upcoming election, that will be held on May 21, focus on the task of regaining people’s “freedom,” which was a casualty during the COVID-19 pandemic when state leaders adopted oppressive measures, providing for repeated lockdowns, social distancing rules, mask and vaccine mandates, and border closures—all resulting in severe restrictions on freedom of movement. Especially in Western Australia (WA), now effectively a one-party Labor state following the obliteration of the Liberals and Nationals in the March 2021 election, the government’s oppression of freedom of movement has been harsh and enforced ruthlessly by a politicised police force. Palmer, controversially branded “an enemy of the state” by WA Premier Mark McGowan, attempted to argue in the High Court that the closure of the WA border during the COVID-19 pandemic was illegal. Western Australia Premier Mark McGowan during a press release at the COVID-19 Vaccination Clinic in Claremont, Perth, Australia on May 3, 2021. (Photo by Paul Kane/Getty Images) Specifically, he contended that the Quarantine (Closing the Border) Directions (WA) and the authorising Emergency Management Act 2005 (WA) were constitutionally invalid because they violated the section 92 of the Constitution, according to which “trade, commerce, and intercourse among the states, whether by means of internal carriage or ocean navigation shall be absolutely free.” However, the High Court held that the burden on interstate intercourse was justified by the non-discriminatory purpose of preventing transmission of the coronavirus. The Court also held that the state measures were proportionate to the objective the State sought to achieve, namely the prevention of the spread of the coronavirus. One could take issue with the High Court’s claim that there was “no effective alternative” to the closure of the state border. Prof. Augusto Zimmermann has suggested that the Court misinterpreted the Constitution because it overlooked the meaning of the word “absolutely.” He opined that the closure of the border “unconstitutionally prohibited cross-border movement to Western Australia” and not only “imposed a direct burden on the freedom of intercourse, but also a discriminatory burden with a naturally protectionist effect,” thereby contravening “the freedom of trade and commerce also protected under the relevant constitutional provisions.” Another reputable scholar, Prof. Anthony Gray, agreeing with Zimmermann’s interpretation in an article published in an influential study on the violation of rights in the age of COVID-19, wrote that it “is clearly evident” that section 92 of the Constitution represents “the vision of a unified, connected nation” and that “the measures are arguably disproportionate to achievement of their legitimate objective.” Even today, although the WA’s state border re-opened on March 3, there are still significant restrictions in place, making it difficult, even inconvenient, for people to travel to the state. This is because visitors are required to apply for an entry pass, known as the G2G pass. A G2G Pass is the functional equivalent of a travel passport. Travellers must complete a most intrusive survey and provide detailed information to the WA authorities. Completion of the document is a painful and time-consuming exercise. But above all, it constitutes an egregious violation of a person’s privacy. The G2G application process involves the extensive collection of personal information: name, gender, date of birth, residential address, email address, phone number, full legal name of next of kin, driver’s licence, main reason for travel, the applicant’s intended address, airline and flight number, and a biosecurity declaration relating to places visited in the two weeks prior to entry into WA, among others. WA Police inspect cars at a Border Check Point on Indian Ocean Drive north of Perth, Australia on Jun. 29, 2021. (Matt Jelonek/Getty Images) It is disconcerting that the WA Police is legally obliged to keep the collected information indefinitely and, therefore, the potential for privacy data breaches is substantial. The permanent storage of the information supplied b

The Palmer Blitz: Should There Be Limits on Political Advertising in Australia?

Commentary

In the 2019 election campaign, billionaire Clive Palmer spent around $80 million (US$60 million) on advertising, including ubiquitous billboards and television and radio ads to promote his United Australia Party (UAP). Although the UAP ran candidates in all 151 electorates, it only received a primary vote of 3.4 percent and failed to elect any of its candidates.

This year, the billboard advertising campaign has been reinstated, and television viewers are again bombarded with advertisements for the UAP.

Zoe Samios and Lisa Visentin recently noted in The Sydney Morning Herald that Clive Palmer spends 100 times more than major parties on advertising, “putting him on track to fulfil his promise to run the most expensive election campaign in the nation’s history.”

The advertisements for the upcoming election, that will be held on May 21, focus on the task of regaining people’s “freedom,” which was a casualty during the COVID-19 pandemic when state leaders adopted oppressive measures, providing for repeated lockdowns, social distancing rules, mask and vaccine mandates, and border closures—all resulting in severe restrictions on freedom of movement.

Especially in Western Australia (WA), now effectively a one-party Labor state following the obliteration of the Liberals and Nationals in the March 2021 election, the government’s oppression of freedom of movement has been harsh and enforced ruthlessly by a politicised police force.

Palmer, controversially branded “an enemy of the state” by WA Premier Mark McGowan, attempted to argue in the High Court that the closure of the WA border during the COVID-19 pandemic was illegal.

Epoch Times Photo
Western Australia Premier Mark McGowan during a press release at the COVID-19 Vaccination Clinic in Claremont, Perth, Australia on May 3, 2021. (Photo by Paul Kane/Getty Images)

Specifically, he contended that the Quarantine (Closing the Border) Directions (WA) and the authorising Emergency Management Act 2005 (WA) were constitutionally invalid because they violated the section 92 of the Constitution, according to which “trade, commerce, and intercourse among the states, whether by means of internal carriage or ocean navigation shall be absolutely free.”

However, the High Court held that the burden on interstate intercourse was justified by the non-discriminatory purpose of preventing transmission of the coronavirus. The Court also held that the state measures were proportionate to the objective the State sought to achieve, namely the prevention of the spread of the coronavirus.

One could take issue with the High Court’s claim that there was “no effective alternative” to the closure of the state border. Prof. Augusto Zimmermann has suggested that the Court misinterpreted the Constitution because it overlooked the meaning of the word “absolutely.”

He opined that the closure of the border “unconstitutionally prohibited cross-border movement to Western Australia” and not only “imposed a direct burden on the freedom of intercourse, but also a discriminatory burden with a naturally protectionist effect,” thereby contravening “the freedom of trade and commerce also protected under the relevant constitutional provisions.”

Another reputable scholar, Prof. Anthony Gray, agreeing with Zimmermann’s interpretation in an article published in an influential study on the violation of rights in the age of COVID-19, wrote that it “is clearly evident” that section 92 of the Constitution represents “the vision of a unified, connected nation” and that “the measures are arguably disproportionate to achievement of their legitimate objective.”

Even today, although the WA’s state border re-opened on March 3, there are still significant restrictions in place, making it difficult, even inconvenient, for people to travel to the state.

This is because visitors are required to apply for an entry pass, known as the G2G pass. A G2G Pass is the functional equivalent of a travel passport. Travellers must complete a most intrusive survey and provide detailed information to the WA authorities. Completion of the document is a painful and time-consuming exercise. But above all, it constitutes an egregious violation of a person’s privacy.

The G2G application process involves the extensive collection of personal information: name, gender, date of birth, residential address, email address, phone number, full legal name of next of kin, driver’s licence, main reason for travel, the applicant’s intended address, airline and flight number, and a biosecurity declaration relating to places visited in the two weeks prior to entry into WA, among others.

Epoch Times Photo
WA Police inspect cars at a Border Check Point on Indian Ocean Drive north of Perth, Australia on Jun. 29, 2021. (Matt Jelonek/Getty Images)

It is disconcerting that the WA Police is legally obliged to keep the collected information indefinitely and, therefore, the potential for privacy data breaches is substantial.

The permanent storage of the information supplied by travellers also constitutes a violation of Australian privacy law, according to which an entity that “no longer needs the information for any purpose for which the information may be used … the entity must take steps as are reasonable in the circumstances to destroy the information or to ensure that the information is de-identified.”

But as the WA Parliament has not yet adopted a privacy law, it is unlikely that the restrictions on the free movement of people, caused by the obligation to obtain a G2G pass, will be removed.

Palmer’s political advertising blitz raises the question whether there should be limits on spending for political adverting. Those who argue in favour of limiting politicians’ spending levels believe that unlimited advertising has the potential to influence the outcome of elections, thereby denigrating the process of democracy.

For example, Anthony Whealy, QC, a former Appeal Court judge has described Palmer’s actions, while legal, as nevertheless “obscene” and “dangerous for democracy.”

However, the High Court, in a 1992 judgement, invalidated a federal statute, that prohibited political advertising on television and radio during election campaigns, as an infringement of the implied freedom of communication in relation to political affairs.

Clive Palmer is thus legally allowed to use his wealth for the purpose of attacking what he regards as severe injustices in society. In highlighting the importance of “freedom,” Palmer is justifiably reminding the electorate of the grave injustices, which were caused by the capricious authoritarian behaviour of state governments, notably in Western Australia.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.


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Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland, and served as pro vice-chancellor and dean at Murdoch University. In 2003, Moens was awarded the Australian Centenary Medal by the prime minister for services to education. He has taught extensively across Australia, Asia, Europe, and the United States. Moens has recently published two novels “A Twisted Choice” (Boolarong Press, 2020) and “The Coincidence” (Connor Court Publishing, 2021).