EXCLUSIVE: Is Jeremy Buckingham In A Bit Of Electoral Legal Trouble? (Answer: Yes, Yes He Is)

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Jeremy Buckingham, the former Greens NSW member turned Independent – or rather ‘Independent Real Green’ if you follow his sloganeering – appears to be in flagrant breach of NSW electoral laws. Michael Brull explains.

Is Jeremy Buckingham in trouble? Might he be facing some difficulty shortly?

Buckingham has often stressed his greatest strength is his social media effectiveness. And I think it can be agreed, he’s pretty good at putting out content that reaches a wide audience.

His biggest platform is Facebook, which has almost 100,000 followers at the time of writing.

If you’ve been encouraged to vote for him this election, it’s probably been through something he posted on his page. For anyone who visits his page, you’ll see this. Note: he is an “Independent Real Green MP”. It says it twice.

If you go to his about page, you’ll see this:

Note – in the about section, he says “Independent Real Green Member of Parliament”. There’s another section – the story – which says more of the same. Independent Real Green.

Why does this matter? Turn to the NSW Electoral Commission. It has a guide to Electoral material offences. One is “Misleading voters”.

As seen, one specific offence is using the word independent – like saying you’re independent Labor. Or, presumably, independent Green. One might think Independent Real Green is roughly the same.

Okay, this only applies to electoral material. Let’s turn to the legislation. First, the offence is in the Electoral Act 2017 (NSW). A person must not, during the regulated period, “print, publish or distribute” electoral material that is non-complying. The penalties are 20 penalty units ($2200), six months imprisonment, or both.

The regulated period is the period between the issuing of the writ for the election, and 6pm on election day. The writs were issued on 4 March, and the election is 23 March. So we are in the regulated period now.

What is electoral material? Literally “any thing” with “electoral matter”. And electoral matter is defined very broadly. For example, it includes “the name of a candidate at any election, the name of the party of any such candidate, the name or address of the headquarters or campaign office of any such candidate or party, the photograph of any such candidate, and any drawing or printed matter that purports to depict any such candidate or to be a likeness or representation of any such candidate.” Recall that the about page includes Buckingham’s face (three times – a video which includes him, and two pictures).

What kind of electoral material is non-complying? Material which uses “the word ‘Independent’ and the name or an abbreviation or acronym of the name or a derivative of the name of a registered party in a way that suggests or indicates an affiliation with that party”.

Like, as we’ve seen, Independent Labor. Or ‘Independent Real Green’.

Of course, Buckingham could argue that Independent Real Green means that he’s not like the other Greens – he’s suggesting distance from them. It’s hard to imagine how that could fly – “real” doesn’t seem more distant than independent. The point is to affiliate with the brand of a party that has earned widespread support, and to capitalise on it where possible. The “independent” gambit is apparently so standard that it is specifically proscribed in the legislation.

The about page includes Buckingham’s name two pictures, and a video including his face, so it’s electoral material. It’s up during the regulated period, between the writs and the election. So it is published and distributed during a relevant time. And the “independent real green” bit is non-complying. The case seems pretty straightforward.

Complaints about electoral material can be made to the NSW Electoral Commission. This issue was brought to the attention of New Matilda by a member of the Greens – indeed, one from the centre left of the party, which is mostly known for avoiding conflict as a primary principle. So clearly, there is a lot of bad blood in relation to Buckingham.

It seems likely that either a complaint has already been made, or a complaint is being delayed till later to cause greater inconvenience and disruption to Buckingham’s campaign. As it is, New Matilda contacted the NSW Electoral Commission to seek comment on the issue. We’re awaiting a response.

Incidentally, during the regulated period, people must not display electoral matter if it doesn’t contain the name and address of the person who authorised the electoral matter. Yes, that includes social media. It’s permissible if the “about” part of a webpage has a person’s name and address.

Readers who are over 30 will remember political ads on TV which ended with someone speed-mumbling the name of the person who authorised the ad and their address. That’s what everyone has to do. This also has a penalty of six months imprisonment, $2200, or both.

The top two candidates for the Greens NSW upper house ticket both include it on their pages.

Perhaps this is because they’re both lawyers.

Take another look at Buckingham’s page:

Awkward. It’s not there. One might think after eight years in the upper house, Buckingham (or perhaps his staffers) would show some basic familiarity with election rules. Or at least, they’d wonder why there were all those authorisation mumbles in TV ads. It may be said that this might count in Buckingham’s favour. After all, there are advantages to Buckingham calling himself an Independent Green despite the rules. Failing to include the authorisation as well seems to indicate that rather than consciously flouting the rules, Buckingham or his office are simply unaware of any of them. Which may present as rank amateurism, but perhaps might gain more sympathy from the Electoral Commission. The downside is that this may open Buckingham to more legal liability.

Interestingly, Buckingham has used lawyers in the past against his critics in the Greens. For example, he successfully prevented a complaint against him from being heard, by getting his lawyers to threaten legal action against the party. He also threatened to sue a teenager for calling him a hypocrite in a private group for Greens NSW members, and against four other members and former members for comments they made in relation to sexual harassment allegations against him.

Some might therefore think it ironic if his political career ends with him subject to legal action.

Ed’s note: We sent Jeremy Buckingham a list of questions about the breaches of the electoral act. Mr Buckingham denied any wrongdoing, sent a statement in reply wrongly interpreting the NSW Electoral Act… and then within an hour, removed all the offending material from his Facebook page.

His statement read:

The restrictions on the use of the word independent and a party name is for official party name registration with the electoral commission and for official electoral material, not for every day usage. The original Greens were green independents and clearly other independents, such as Clover Moore, Peter Andren, Ted Mack and Andrew Wilkie have had green politics but have been independent MPs.

Green politics is far bigger and deeper than the political party called The Greens. The NSW Greens have clearly drifted far away from genuine environmental green politics and are now an extreme left socialist party.

As an independent MP and candidate, my politics and policies are still very green. My ticket features some of the best environmental campaigners and community activists in NSW. People who have been successful in fighting coal, coal seam gas, toxic incinerators and for healthy rivers. Voters concerned about the environment should vote for my ticket, Group L, in the Upper House, as I am far more green than the NSW Greens political party.

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Michael Brull

Michael Brull writes twice a week for New Matilda. He has written for a range of other publications, including Overland, Crikey, ABC's Drum, the Guardian and elsewhere. His writings can be followed at his public Facebook page (click on the icon below right).

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