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The role of lawyers in ‘mitigating the chilling effect of laws’

Following the recent Voice to Parliament referendum, lawyers can play a massive role in education around the Australian electoral system to encourage transparency and drive change, one partner has said.

user iconLauren Croft 01 November 2023 Big Law
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Kiera Peacock is a partner at Marque Lawyers. Speaking on a recent episode of The Lawyers Weekly Show, she revealed some of the current issues around misinformation in the electoral law system ahead of the recent Voice to Parliament referendum, which returned a “no” vote.

Ms Peacock has been working in the electoral law space for the last six or seven years – and said the rise of social media and “unregulated” communication platforms could be extremely dangerous in terms of misinformation, with a number of cultural and environmental shifts currently perpetuating some of these issues.

“As lawyers, we’re used to seeing that so much of our society rests upon people having trust and respect for government, even if they don’t like government,” she said.


“There is still an understanding that we’ve got this social contract whereby we acknowledge that there are people who will draught laws, there are people who will enforce those laws, and whilst we might not always agree with the way they do it, it’s an important function, and there’s a benefit to society and upholding those institutions. I think there’s been a growing lack of faith in that social contract, and so that invites people to doubt the integrity of the organisations which govern them.”

There are a number of key examples here, including the 6 January riots in America, which Ms Peacock said “were both a groundswell from people but also being stoked by major political actors that really sought to completely undermine the regulator and the electoral system there with what we now know to be no apparent basis”.

“What I found scary in the Australian context was seeing some of those threads play out where we have attacks being put on the AEC which seek to undermine the integrity of the voting process which they are conducting, and attacks which are made perhaps disingenuously or without a proper basis. We see Twitter awash with various accusations from anywhere, from we’re being given pencils so someone can rub out our vote to the AEC being biased and using subtle means to undermine a particular side of the debate,” she added.

“And I think that’s when you start to see that discourse come through; it does lead you to think, well, how far away are we from a January 6 type situation when there are a lot of people out there who think that these institutions are actually seeking to undercut them and not protect them.”

Australia is one of the only countries in the world that has compulsory voting, meaning that the Australian Electoral Commission has a greater obligation to get it right.

“It’s very clear that the presence of compulsory voting in Australia means that the courts take protection of voting rights and protection of our electoral system very, very seriously. Because if you disenfranchise one or two people, not only are you stopping them from exercising their democratic right to vote, you’re actually stopping them from exercising their positive obligation as a citizen of the country to vote,” Ms Peacock emphasised.

“So, compulsory voting is certainly one of the pillars of our system which keeps people more engaged. There is a point where once every three years or so, you do need to turn up to a ballot box and turn your mind to the system that we live in. But equally, it ensures that there is broad and widespread concern about ensuring that people can freely and properly exercise their voting rights.”

And in terms of specific lessons coming up to the recent referendum, Ms Peacock said that Australia needs to consider a “toolkit” for dealing with misinformation and disinformation, as it could cause extensive damage to our system.

“As lawyers, we all know what we have in our Constitution. Implied in our Constitution is the freedom of political communication, which means that we can’t have laws [that] impermissibly burden the right of someone to engage in political debate and political communication. So, there’s an ongoing tension between laws [that] seek to regulate or prohibit certain forms of political expression and considering how that sits with the implied freedom.

“There are jurisdictions in Australia which have those laws, such as South Australia and the ACT, and there’s certainly a push federally to implement laws which don’t prohibit a broad spectrum of communication, but they do seek to create some form of accountability for certain political actors about to stop lies. I think we all need to take a step back after the referendum as well and consider how do those laws apply to these new forms of social media and what’s our expectation on platforms to assist in regulating this. Because what we’ve seen, many of the platforms to date have taken self-regulation and have some great initiatives to help improve transparency and political advertising and also counter misinformation,” she opined.

“One thing to do is consider what kind of society we want to create for political discourse, and the other thing I think we need to really turn our minds to is what we have or the means that we have in Australia to help rent or help create faith in our democratic institutions. And that only happens, I think, through people understanding what the accountability measures are for when those institutions do something wrong.”

To encourage transparency and accountability within our political systems, lawyers can help educate people where they can, which Ms Peacock said is the only way to achieve change.

“Typically, attacks on the system come from people who don’t understand it or seek to exploit in others a lack of understanding of it. So, as lawyers, we all have a role to play in both, as I said, holding the system to account, but also ensuring that others are aware that we do have accountability measures. And that makes us stronger and better,” she concluded.

“I think lawyers can have a role to play in mitigating the chilling effect of laws. Sometimes, laws in this area can seem quite daunting and overwhelming, and that can be a disincentive for people wanting to get engaged. So, as lawyers, we can help people understand the electoral law system or the electoral system and how they can participate and really open up the appetite of people to participate because it’s the fundamental way that we can achieve change in our lives, in our political system.”

The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with Kiera Peacock, click below:

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