“How is this even legal? Why don’t politicians have to tell the truth in their election ads?”

“You can’t run an ad full of lies about products, so why politics?!?”

“Tony Abbott started the trend in 2013 with the Carbon Tax, Labor copied it with Mediscare in 2016, and in 2019 the Coalition’s Death Tax was easily the worst. It’s time to draw a line under big fat lies in election campaigns”

. . .

For many Australians, it feels like the last ten years of Australian politics has become increasingly unhinged — with political parties and their allies running increasingly deceptive advertising to try and win elections.

The 2019 federal election spat up no shortage of examples. Most notable were the Liberal Party’s Chinese language signs across Melbourne which were designed to mimic the Australian Electoral Commissions own (non-partisan) signage — which said preferencing the Liberal Party is the “correct way to vote”.

There were many examples:

• Liberal ads saying Labor was planning a “car tax” on trade vehicles,

• Paid ads from a Facebook group saying Tanya Plibersek “thinks that Indians can’t create jobs in Australia”,

• the United Australia Party running ads saying the party “will win government”,

• a Facebook ad paid for by George Christensen, which said that “we know Labor have secret plans to bring in a death tax”,

• with other Liberal advertising claiming, “Labor will tax you to death”.

84% of Australians agree that they would like to see some kind of regulatory change mandating “truth” in political advertising — hoping this will result in more straightforward and less tricky election pitches. The public does not feel confident deciding whose claims are accurate or otherwise during elections.

The ACT has already taken action, introducing new laws in August 2020. But they’re far from the first. The Federal Government introduced similar laws in 1983 before they were repealed less than a year later in 1984 (never having faced an election). In the years since, there have been many attempts at reviving the idea, notably after the 2010 federal election, when Prime Minister Julia Gillard entered into an agreement with the Greens and two of the independents that they would work together to create a ‘truth in political advertising’ offence in the Commonwealth Electoral Act. Many states have explored the idea — but ultimately found that it was legally unworkable for several reasons. The only exception is South Australia — which introduced laws nearly 20 years ago and which remain in place.

However, although the public shares a vision for what political advertising laws should achieve — significant problems arise while trying to determine how they might be effectively created and enforced.

These fall into three primary categories:

1. How do we determine ‘truth’ in promises, opinions, forecasts and predictions in political advertising,

2. How we can effectively deal with claims of misleading advertising during an election campaign,

3. How can an effective law be crafted which does not breach the constitutionally implied freedom of political communication?

There is also a fourth broader risk — which is that a new law could provide a new political weapon during elections which could make the transparency of election advertising worse rather than better.

Additionally, such a change would not address dis-information, mis-information or mal-information. This is information typically created by or distributed by people who sit outside of our electoral laws (i.e., individuals or loose online groups rather than political parties or lobby groups).

How we choose to answer these questions will have significant impacts on the quality and health of our public life for decades to come.

Defining Truth in Political Advertising

The biggest challenge in addressing this problem is agreeing on what ‘truth’ even is. That may sound like esoteric whimsy in Greek philosophy but in matters of politics — who is to say which party’s school funding policy is better? Or which party’s tax policy is fairer? It is, by definition, a matter of opinion and belief.

Both sets of policy are generally designed with months and months of research, built on provable facts and in consultation with some of our smartest minds. Each party’s vision for the future is designed to be stress-tested and to be defensible in public.

But each party, inevitably, arrives at very different conclusions about the best solution.

One group might be optimistic about some factors, and another a more cautious analysis. One might believe that a certain direction is worth investing in for the future, whereas another might believe it’s a waste. There is no way to genuinely know which one is right. And indeed — the very purpose of politics is to let the public decide which of those two (or more) directions is the preferred path, which of those directions reflects the ‘truest reality’ for most people.

This is where it gets challenging for political advertising and the regulators tasked with policing it — as each group attempts to assert that it is their projections, their assumptions, and their modelling that is the more likely to be correct. These assertions are typically categorised as either:

• a matter of opinion (e.g. ‘X party is incompetent and untrustworthy’),

• a promise (e.g. ‘No New Taxes’) or

• a prediction (e.g. ‘Interest rates will be higher under Y Party’, or ‘Z Party will stop the boats’).

Sometimes some errors can be easily pointed out (for example, a projection based on the wrong population figure or a false claim about where a candidate was born). But all too often, it is not this clear cut and is, by definition, a matter of debate.

Indeed the High Court has itself — seeking to defend the constitution’s implied freedom of political discussion — has confined their role in deciding truth in political advertising to questions around the electoral process rather than questions which might affect candidate choice.

This means they will only rule on matters relating to either misleading statements of fact concerning the process of voting (i.e., encouraging people to mark the ballot paper incorrectly), or to false statements of fact made about the ‘personal character or conduct of a candidate’. Neither of these achieves the outcome that advocates hope for — which is to effectively hold candidates and parties accountable for exaggerations, false claims, and broken promises.

If we introduce truth in political advertising laws — how do we define whose truth is correct? What would be covered that isn’t already (for example, even if the parties often cherry-pick the most controversial quotes from their opponents — very rarely do they fabricate them outright)?

Mechanisms for Truth: What content fails the test?

For decades, parliamentary processes and advocates have tried to build a legal mechanism which would effectively capture these exaggerations, false claims and broken promises — and which would survive a constitutional challenge.

Two states have now introduced legislation which has survived constitutional challenges (South Australian and the ACT), but critics claim that these laws were so weakened through this process that they are not particularly effective.

1983 — The Federal Push

One of the first major attempts to legislate for truth in political advertising happened at the federal level in the early 80s. The Hawke Labor Government introduced changes to the Commonwealth Electoral Act (116) that read as:

A person shall not, during the relevant period in relation to an election under this Act, print, publish, or distribute, or cause, permit or authorise to be printed, published or distributed, any electoral advertisement containing a statement:

that is untrue; and

that is, or is likely to be, misleading or deceptive.

This change also included a provision for a ‘reasonable excuse’ — ie, if the person was able to prove that they ‘did not know, and could not reasonably be expected to have known’ that the ad violated one of those rules.

This didn’t last long though — and was repealed less than a year later before it was ever used in an election.

The parliamentary committee reviewing it put forward the following criticisms:

1. While fair political advertising is a legitimate objective, it is not one properly to be sought through legislation. Political advertising involves ‘intangibles, ideas, policies and images’ which cannot be subjected to a test of truth, truth itself being inherently difficult to define.

2. As evidence was given that even predictions and opinions may imply statements as to present fact, and thus be subject to the section, the section was considered to be so broad as to be unworkable.

3. The section would have a disproportionate impact on publishers, who would need to seek legal advice before publishing. This would inhibit political advertising and thus limit the information received by the public.

4. The Committee expressed concern that injunctions might be misused to disrupt the campaigns of other parties and candidates. In the context of an election campaign, the grant of an interim injunction could have the same effect as a final order.

In their conclusion, they said

the Committee concludes that even though fair advertising is desirable it is not possible to control political advertising by legislation. As a result, the Committee concludes that s 329 [161] should be repealed. In its present broad scope, the section is unworkable and any amendments to it would be either ineffective, or would reduce its scope to such an extent that it would not prevent dishonest advertising. The safest course, which the committee recommends, is to repeal the section effectively leaving the decision as to whether political advertising is true or false to the electors and to the law of defamation.

Additionally, the High Court in this time itself recognised the real difficulty of courts becoming involved in attempting to assess the truth of opinions, beliefs and intentions — especially concerning political campaigns.

In Evans v Crichton-Browne (1981), the High Court held that the words ‘in or in relation to the casting of his vote’ regarding misleading, incorrect or improper interference were limited to ‘the act of recording or expressing the political judgment which the elector has made rather than to the formation of that judgment’. In short, the High Court believed the Electoral Act only protects voters in the act of casting their vote — not the months or weeks beforehand when they may be deciding who to vote for.

There have been multiple attempts to explore this idea in the decades since, all largely coming to the same conclusion — notably through parliamentary processes in 1994 and 1995 and in the public debate following pretty much every election cycle since.

Has it worked anywhere? The South Australian Question

Very few jurisdictions have successfully implemented truth in political advertising rules. The one jurisdiction frequently cited by advocates is South Australia, which introduced a provision for truth in advertising after the failed federal initiative. As a result, the South Australian law is quite different from the federal approach in that it redefines misstatements of fact.

Section 113 of their Electoral Act (1985) reads:

Where-

an electoral advertisement contains a statement purporting to be a statement of fact; and

the statement is inaccurate and misleading to a material extent, a person who authorised, caused or permitted the publication of the advertisement shall be guilty of an offence.

It is advantageous to the federal approach in a few ways — notably that it includes protections for people who “took no part in determining the contents of the advertisement’ (i.e., publishers, printers and distributors) or people who ‘could not reasonably be expected to have known the statement to which the charge relates was inaccurate and misleading’.

However, it does not have a particularly strong history of successful interventions. Nobody has ever been prosecuted under this law (although the SA Electoral Commissioner did request 17 retractions or withdrawals during the 2014 and 2018 elections). And the Electoral Commission itself has felt increasingly uncomfortable with its role as the sole arbiter of ‘truth’ — calling for its powers to be revoked in 2014 to ensure it could maintain both its real and perceived independence during elections.

Many legal practitioners are sceptical about how effective these laws can be when they cannot be easily implemented. Suggesting that they are more symbolic than anything else.

Indeed a 2019 University College of London study examining the SA laws ultimately recommended against their introduction in the UK, determining “the benefits it can hope to bring are limited”.

“In order not to impinge upon free speech, such interventions can be applied only where the inaccuracy of information is unambiguous. But most of the misleading spinning that characterises political campaign discourse is much subtler,” the study found.

The ACT outlines ‘a new way’.

In 2020, spurred by the federal events of the last decade, the ACT passed a series of amendments to their electoral act. Giving the ACT Electoral Commissioner the power to order an ad not to be disseminated, or to be retracted, if they deem it false. However, the Commissioner will not be the sole arbiter — if there is disagreement, the matter can be referred to the courts. But the intention is for any lie to be stamped out quickly and before it does too much damage.

Additionally, as with the South Australian law, there is an exemption for publishers (only the author can be held responsible), and as with the 1980s federal law — accused groups can say they ‘couldn’t have reasonably known that the statement was inaccurate or misleading’.

How the commissioner will be empowered to decide what is an “inaccurate or misleading” statement is less clear — and, although the Labor, Liberal and Greens parties were fast to get behind the amendments, none of them knows how it will work yet. Both major parties said if they won government, they would need to sit down with the commissioner. Attorney-General Gordon Ramsay also expressed concern in the chamber over the legislation’s “workability” with the constitution.

Further — as wIt also only applies to authorised political material — which is the paid material coming from a registered political entity. It does not meaningfully address the spread of disinformation.

What is the approach in the other states?

There is some movement in other states, notably with an inquiry underway in QLD.

• Section 151A(1)(b) of the Parliamentary Electorates and Elections Act 1912 (NSW) makes it an offence for a person to ‘print, publish or distribute any “how-to-vote” card, electoral ad, notice, handbill, pamphlet or card containing any untrue or incorrect statement intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his vote’.

• Section 209 of the Electoral Act 1985 (Tas) prohibits statements ‘intended or likely to mislead or improperly interfere with an elector in or in relation to the recording of his vote’.

• Section 163 of the Electoral Act 1992 (Qld) is in similar terms except that it is expressed as ‘intended or likely to mislead an elector in relation to the way of voting at the election’.

• Section 267B of the Constitution Act Amendment Act 1958 (Vic) reads: ‘A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit or authorise to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of the vote of the elector’.

• Sections 191A of the Electoral Act 1907 (WA) and 329(1) of the Commonwealth Electoral Act 1918 (Cth) are in like terms.

• Section 106(c) and (d) of the Electoral Act 1993 (NT) prohibits statements ‘intended to or likely to mislead or improperly interfere with an elector in or in relation to the casting of his vote’.

Other Considerations

The above cases explore specific regulatory challenges faced over the last 30 years with achieving the stated goal. Beyond this, other concerns have been raised during the process. Such as:

• Who would enforce any law once it’s passed? Would it be the Electoral Commissioners? Would this compromise their perceived or real independence?

• If the majority of disputes about truth in political advertising are likely to happen during an election campaign, where each hour can make a difference to the outcome, who would be resourced and capable of making a fast judgement?
  
  Such an ask would likely distract the Electoral Commissioners from their primary task of facilitating the election itself. Meanwhile, courts are the more natural solution — but they are not capable of resolving matters confidently in this timeframe.

• What would the punishment mechanism be?
  If it were fines, how could you ensure they were substantial enough to dissuade the behaviour (avoiding the situation seen in SA where at least one person prosecuted in 2001 claimed that the coverage they received about the ‘fine’ was effectively cheaper than the media cost for buying equivalent advertising space).
  
  If it were greater than fines, such as prison time, deregistration as a political party, or even declaring the election result invalid — how can you be confident that this didn’t become a political weapon?

Conclusions and Lessons for the Future

Ultimately, regulating truth in political advertising is unlikely to prevent the kind of exaggerations, false claims and broken promises that advocates hope it will achieve. The ‘truth’ of these promises, opinions and predictions is a matter of subjective judgment. One of the fundamental questions that voters must — by definition — determine for themselves.

Such a law would also only apply to formal, registered political actors — not individuals, foreign states or others who have been observed conducting dis-information, mis-information or mal-information campaigns during our elections.

However, if we can’t stop all false claims in an election — should we bother stopping any? Of course, we should try.

For that reason, it’s certainly not a waste of time developing truth in political advertising legislation. It sets a clear expectation to political actors about the spirit and expectations the community holds in relation to elections. However, proponents also need to appreciate that such legislation will always fall short of their expectations and hopes — not due to a flawed approach by politicians but due primarily to constitutional and regulatory challenges that are difficult, if not impossible, to overcome.

Minimum requirements for more truthful and accountable political advertising

Ensuring everything is authorised by the person who publishes it, and the person who funds it.

Already a commonly accepted part of Australian political life, we should rigorously maintain the authorisation requirement in political advertisements — and ensure that it continues to adapt.

This means including detailed and descriptive information on who paid for, created and distributed the information and constant revision of the political actor categories to ensure that they reflect community expectations.

For example, the current law requires not just candidates and political parties — but also associated entities (those with a formal, financial relationship with a party), political campaigners (organisations investing significant funds into shifting the electoral outcome but with no formal relationship to a political party) and third parties (organisations investing any amount, but below the political campaigner threshold, into shifting the electoral outcome) to authorise their material so the electorate knows who is speaking to them.

Should new electoral strategies emerge — our authorisation and disclosure laws should adapt to reflect them.

Some things are just straight-up false and should not be allowed

Although there are significant Constitutional challenges to truth in political advertising law — the one thing there is universal agreement on is that demonstrably false claims should not be allowed.

Whether that be related to the process of voting (i.e., how to mark their ballots correctly, the day of the election or the location of polling stations), the personal character of candidates (i.e., whether they’ve ever been charged with a crime, or inaccurately attributing quotes), as well as measurable facts (i.e., average rainfall in NSW, total number of migrants in a year).

These claims will likely continue in the unregulated sphere of political communication — but voters should have confidence that any claims made by political actors (directly or indirectly) are materially accurate.

We must maintain protections for those distributing materials

One of the key areas of debate in previous attempts to regulate truth in political advertising has been where to draw this line. Should a printer (who had no part in drafting the content) be held accountable for the political parties’ posters? Should a volunteer distributing flyers at a polling booth be responsible for what it says? Or should your uncle be legally liable for sharing a false Facebook post he did not create? The answer to this is no — and we should draw from the South Australian law, which excludes those who ‘could not reasonably be expected to have known the statement to which the charge relates was inaccurate and misleading’.

Any legal approaches need to satisfy the Lange Test

The first stage of the Lange test requires consideration of whether the law effectively burdens freedom of communication about government or political matters. Would a law that prohibited or penalised the making of untrue statements in political advertisements burden freedom of communication about political matters?

At least three high court judges suspect so.

In Nationwide News v Wills, Justices Deane and Toohey JJ contended that “Freedom of political discussion necessarily involves freedom to maintain and consider claims and opinions about political matters notwithstanding their unpopularity among either the general populace or those in government or that they may ultimately be shown to be mistaken”. They concluded that the fact a court finds an assertion, opinion or criticism relating to the government to be mistaken ‘does not, of itself, suffice to establish that the suppression of their expression is or was consistent with the effective functioning of representative government’.

Justice McHugh also writes in Levy v Victoria that “[T]he constitutional implication does more than protect rational argument and peaceful conduct that conveys political or government messages. It also protects false, unreasoned and emotional communications as well as true, reasoned and detached communications.”

We can clearly establish a set of social norms — even if they aren’t legally defensible.

However, as much as this may feel like it happens often — the reality is that things you can prove to be untrue are quite rare.

These claims are often in the grey area being contested by both parties and where both are technically right as far as a legal defence would go — even if not in the court of public opinion.

For example, if two government bodies have generated conflicting statistics about pollution in the air due to different collection methods. If one party used one, and the other party used the other — they are both technically ‘true’. Or if one party boasts about the total number of homes built, this implies that these homes are occupied by happy families — when many may, in fact, be sitting empty in extremely remote locations. Again, it is still technically true — even if it leads many readers to form a positive yet false conclusion about the number of homes available to them.

Introducing truth in political advertising laws would not legally forbid these types of claims — but it would allow both political actors and active observers (such as journalists) to argue in public that egregious claims sit outside of the ‘spirit’ of the truth in political advertising laws.