‘Hello, this is John Howard. I’ve taken the unusual step of contacting you with this recorded message to support your local Liberal candidate in [name of electorate], [name of candidate]. As part of my federal Liberal team, [name of candidate]will immediately start work on his detailed plan for your seat of [name of electorate]. I know [name of candidate]and I know he will get things done for [name of electorate]. This is John Howard on behalf of [name of candidate]. Thank you for your time.’ listen here
‘Many consumers are outraged over the proliferation of intrusive, nuisance calls to their homes from telemarketers.’ This was the finding of the US Congress when enacting the Telephone Consumer Protection Act of 1991. That law prohibits the initiation of telephone calls to deliver a pre-recorded message unless the recipient has given consent. But if the pre-recorded message does not have a commercial purpose, the prohibition does not apply. So political candidates in the US are not prevented from delivering pre-recorded messages as part of their campaign. Indeed, in the US there are businesses specialising in ‘voter contact services’, including the delivery of so-called ‘advocacy calls’ or ‘Get Out The Vote calls’.
In July this year, Australian academics Peter Van Onselen and Wayne Errington predicted the use of electronic phone messaging in the 2004 election. Online Opion. According to the Prime Minister, the technique has previously been used in Australian local government campaigns – The Australian IT News.
The ALP has complained to the Australian Electoral Commission. However, according to reports, The Australian IT News the complaint is not about the use of advocacy calls. Rather, they are concerned the messages do not state who authorised them (presumably suggesting that they may be electoral advertisements that do not comply with the requirements of Section 328 of the Commonwealth Electoral Act). The complaint is also reported to allege that calls were made to silent (unlisted) and mobile telephone numbers.
The media branded the campaigning technique as ‘phone spam’. Earlier in the campaign, the Prime Minister admitted to personally engaging Net Harbour, a company run by Tim Howard, the Prime Minister’s son, to send unsolicited email messages to voters in the seat of Bennelong – The Age.
On the assumption that the emails urged voters to support John Howard in the election, rather than offering to supply goods or services, the sending of such emails would not contravene Australia’s Spam Act because they would not be ‘commercial’ in nature.
These practices raise the issue of how candidates for political office are able to obtain contact details that are unlikely to be publicly available, such as silent numbers and email addresses, for voters in a particular electorate.
Both major parties are said to have invested substantially in developing databases to support their campaigns. The Liberal’s is called ‘Feedback’ and Labor’s is ‘Electrac’ (previously ‘Poll-File’). The databases will include the information printed on the electoral roll (name, address, electorate). The parties are also entitled to receive from the AEC the sex, date of birth, salutation and census district of each person enrolled “ see s90B(2) and (10) of the Commonwealth Electoral Act.
Given the advocacy calls and email messages delivered in the 2004 campaign, it is clear that the parties supplement this electoral roll data. So, at the very least, the parties possess the means to segment the electorate to some degree so as to generate targeted messages. An early example was prior to the 1990 federal election: Jim Snow, the former ALP member for Eden-Monaro, sent quite different letters to supporters of the local timber industry and conservationists. Van Onselen and Errington suggest that the major parties routinely collect information concerning individual voters precisely so they can target their communications more effectively – see paper here. As a former Liberal party staffer, Van Onselen presumably has some insight into these practices.
If the political parties were regular Australian businesses or federal government agencies, they would not be able to shroud their technological capabilities in secrecy. But when the federal Privacy Act was amended in 2000 to regulate the private sector, an exemption was introduced for activities of registered political parties (Section 7C).
As a result of the exemption, there is no obligation on the parties to restrict their collection of personal information to that which is necessary for one of their functions. Contrast this with a May 2004 Federal Court decision in a case involving the Media Entertainment and Arts Alliance – see Austlii. In that case the MEAA commissioned a call centre company to conduct a telephone poll of employees of Channel Seven and report back details of those employees interested in receiving more information about the MEAA and its activities. The Court held:
‘The lists of those employees with an interest in MEAA and of those wishing to receive more information about MEAA plainly contain personal information about those employees. That information, no matter how useful or desirable to MEAA, was hardly necessary for any of its functions.’
The MEAA was found to have breached the Privacy Act, and injunctions were issued.
The exemption also has the consequence that the parties need not take steps to ensure that individuals about whom they collect personal information are aware of what kind of information they hold, what is done with that information and the types of organisations to whom it is usually disclosed. And individual voters have no right of access to their personal information held in the parties’ databases.
It is unlikely the ‘political parties’ exemption to the Privacy Act will be repealed in the foreseeable future (no matter which party is in government). But the use of pre-recorded advocacy calls and unsolicited political emails will, no doubt, be examined in more detail by the Joint Parliamentary Committee on Electoral Matters. This Committee routinely examines the conduct of each federal election and makes recommendations to government on reforms to the electoral laws. However, it would be surprising if the Committee sought to prohibit the use of these campaign techniques. More likely, each party will be left to assess the value of a particular communication against the risk of alienating its recipient.
Max Suich, Votes On File
Peter Van Onselen and Wayne Errington, Voter Tracking Software: the Dark Side of Technology and Democracy here in pdf format
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