APOLOGY TO OUR READERS

Poll we dare not mention

We wanted to deliver Tasmanians the best, most detailed news coverage of today’s critical state election.

But we can’t. And we could go to jail if we tried to do our duty as Tasmania’s major newspaper. That’s because an archaic criminal law denies you — the Tasmanian people — the right to know what we know.

It bans the Mercury and all newspapers from publishing today any story about an issue or candidate before the polls close.

But most of all this law bans you from being fully informed on election day. And that’s undemocratic.

After the polls close at 6pm there will be full coverage on themercury.com.au — and a special edition of the Sunday Tasmanian tomorrow.

HE Mercury would love to be reporting today on the State Election. It pains us to have to make such a bold statement as the one we have made on the front page — rather than delivering to you, our readers, the coverage you deserve of the biggest story of the year in Tasmania.

However, an anachronistic law first drafted decades ago and still bizarrely on the books means that the editor of the Mercury would be liable for a fine of $15,900 and/or three months in jail should we report before polls close today on any candidate or on any issue relating to the election.

There are no such limitations on television or radio — or indeed anybody else, with everybody other than “newspapers” free to publish whatever they like today on any platform. That means that there is also no restriction on commentary on social media, on which — of course — far more outrageous claims can be made that can then be easily shared with voters before they cast a ballot.

The ban is spelled out in the Electoral Act, a law that was passed in 2004 as a rewritten update of the 1984 legislation.

Section 198 of the Act states that “a person must not, on the polling day fixed for an election … publish or cause to be published in a newspaper … a matter or comment relating to a candidate or a question arising from, or an issue of, the election campaign”.

And so what’s a newspaper? Does it cover the Mercury’s website? Well, it’s not clear. The Act itself contains no definition, and requests from the Mercury in recent weeks to authorities to clear up the confusion have led nowhere.

There is a relevant definition in section 46 of the Acts Interpretation Act — passed in 1931, 87 years ago. It says a “newspaper shall mean a newspaper as defined in the Printers and Newspapers Act 1911”.

Okay, so we turn to that legislation to find that it defines newspapers as being “every paper or pamphlet … containing any public news … at a price of sixpence or any less amount”. But alas, that law was repealed in 1998 — 20 years ago, and six years before the current Electoral Act was passed by Parliament.

And so there is but one conclusion: not only is this ban a ludicrous one, but the legislation in which it is spelled out is lazy — and therefore demands review.

No such blackout on news reporting exists anywhere else in Australia. And where similar bans exist overseas — such as in France and Britain — the legislation clearly spells out that it applies not only to newspapers. In fact, the French ban that applies 44 hours before every presidential or legislative election applies to candidates as well — and technically to every citizen. In Britain there is a similar ban on all media. But in Britain the media is allowed to publish images of the candidates — something banned in Tasmania, as The Advocate discovered in 2006 when it was fined $5000 for running an image of a candidate.

The Mercury apologises to its readers, and hopes that the next Parliament being elected in the poll we can’t talk about today sees fit to review this stupid law.

We will be back on themercury.com.au from 6pm, and in the Sunday Tasmanian tomorrow.

... not only is this ban a ludicrous one, but the legislation in which it is spelled out is lazy...

Responsibility for all editorial comment is taken by The Editor, Chris Jones, Level 1, 2 Salamanca Square, Hobart, TAS, 7000