In the real world, if you’re a business that publishes or broadcasts an advertisement that is misleading or deceptive, you’ll be breaking the law and could be looking at a $10 million penalty.
If you’re a political party or candidate and you do the same thing, you might just win an election.
The absence of illegality, let alone consequences, for deceptive practices during election campaigns has always been problematic, but the social media age has made it destructive. The infamous “Mediscare” campaign in the 2016 federal election is often identified as the point where things started to go seriously off the rails.
By 2019, the deception of voters had become industrial. Much of the Coalition’s success in the election that year was a reward for a sustained strategy of outright lying about the Labor Party’s policies (“death taxes”, etc).
Observing the current Eden-Monaro byelection, things clearly have not improved. The AFP has been asked to investigate an underground campaign targeting the ALP candidate with outrageous untruths.
It’s important to distinguish between politics as usual, in which lying through one’s teeth is a job description rather than an aberration, and election campaigns, the period when voters are likely to pay attention to the bullshit politicians peddle.
The law has always applied special rules to campaigning, but rarely attempted to give those rules any teeth. In the Commonwealth Electoral Act, there is no prohibition on misleading political advertising, with a very narrow exception: it is an offence to mislead electors in relation to the casting of their vote. (There is also now a post-Mediscare prohibition on pretending to be a Commonwealth agency.)
In the recent challenge to Josh Frydenberg and Gladys Liu’s elections, the Court of Disputed Returns ruled that a Chinese language sign deployed by the Liberal Party at polling booths — made up to look deceptively like it was an official Australian Electoral Commission sign and directing voters to vote for the Liberals — was illegally misleading.
No consequences followed, because the court said that the result wasn’t likely to have been affected — despite Liu winning by only 1000 votes. Nobody was prosecuted for the offence.
The federal law did briefly include a general prohibition on misleading ads, introduced by the Hawke government in 1983. However, after both major parties realised what this meant, it was quickly repealed altogether a year later.
South Australia is the only jurisdiction which does outlaw misleading political advertising, making it illegal to put out an ad containing a statement of fact which is inaccurate and misleading to a material extent. The law survived a constitutional challenge in 1995.
It’s topical because the Greens and ALP, who between them control the ACT parliament, have just announced that they plan to pass a similar law ahead of the ACT elections in October.
The issue of controversy here is the intersection point between two very attractive principles: truth in advertising, acknowledging the extreme power of advertising to change minds and motivate choices; and freedom of political communication.
When the federal law fell over in 1984, the ostensible justification put up by the parliamentary committee that killed it was this:
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.
The committee concluded that the law simply could not control political advertising so it shouldn’t even try, “leaving the decision as to whether [it] is true or false to the electors and to the law of defamation”.
Defamation? Wow, talk about a hospital pass.
Anyway, that’s where things were left 36 years ago and they’ve never been revived. Neither major party has shown any interest in properly regulating conduct, preferring to just whinge incessantly about each other’s increasingly feral campaign strategies in a race to the bottom.
Can political advertising be regulated, and should it? Yes. The key distinction is between the political promise and the political lie.
It is not appropriate that politicians risk legal liability for the promises they make, despite that concept’s surface attraction. There is, however, no reason they should be able to get away with telling outrageous lies about matters of present fact.
If a political party advertises that it intends to never cut the ABC’s funding, and then it does exactly that, there should be no legal (as opposed to political) consequence for that. If it falsely advertises that an opposition candidate is a convicted sex offender, then that flat lie should be open to prosecution.
The problem is not really insoluble. Since the major parties are clearly incapable of regulating their own behaviour, it is also increasingly urgent.
We need stronger laws to rein in the excesses of political deceit. All that is missing is the political will to make that happen. Hopefully the ACT may be about to provide the impetus for a renewed conversation on the national stage.
Part of the issue will be any legislation introduced will need to be backed by a regulator with actual teeth.
The fact that there were no consequences for Liu’s and Frydenburg’s actions was deplorable and an indictment on the whole system where you can do the wrong thing with a degree of confidence that you’ll get away with it.
As an interesting follow-up to the Chisholm electorate posters endorsed by Frydenberg and Liu, is that the AEC banned a purple poster outside a booth in the current Eden-Monaro pre-polling. What is really interesting is that the posted only said voters needed to put a number in every square. It did not advise voters to put a number 1 next to the Labor candidate to ensure their vote was “correct”.
https://www.abc.net.au/news/2020-06-18/aec-cracks-down-on-signage-in-eden-monaro-by-election/12370874
The ALP are naive in expecting a positive outcome from the Federal Police over malfeasance in Eden Monaro. The Feds have got form as the enforcement arm of the Liberal party. Note their inaction on the Sports Funding rorts, the defamation of Clover Moore and their pursuit of whistle blowers and journalists over the bugging of Timor-Leste’s cabinet offices
The AFP are clearly conflicted as they are part of the Executive and are only accountable to their minister. That is why Bridget and Mathias etc haven’t been charged with misconduct in public office over the unlawful spending of our money. Even the so-called independent chapter IV Federal Court goes soft on Dutton for his contempt in failing to comply with court orders. The list of unlawful behavour of this government is just gobsmacking. And yet, Morrisson has the gall to lecture people about complying with the law. It’s why we need a Federal ICAC and why the population needs to wake up before our descent into a totalitarian fascist state.
Surely if a political party denies that it has actually made cuts when it has, then this must constitute lying.
Michael I agree wholeheartedly. Perhaps you should have a private members bill drafted for one of the cross benches to introduce.
And, yes, politicans’ promises ought to be considered in the same believability category as, ‘the cheque is in the mail, and ‘I won’t. …’. Nevertheless, morally when a voter gives a vote on the basis of the politican’s ‘offer’ one could argue that there is a contract, or a statement in a policy manifesto could be considered a firm of Deed of Agreement. So I can see an argument that even breaking these promises should have consequences.
I particularly like your comparison to the Whitlam Labor (real) Governments Trade Practices legislation on deceptive and misleading conduct. There are 3 important aspects in this legislation on lying behaviour, that should also apply to election speak. Firstly, the prosecution does not need to prove an intention to lie; the test is an objective one, was it misleading or deceptive? Second, the prosecution is not just left up to a regulator that is usually under-funded, has a conflict of interest in prosecuting the Executive arm of government, and is frequently captured by the sector its meant to be regulating. Anyone can litigate, and not just someone affected. Thirdly, in-house, employee or company funded research cannot be used as a defence to ‘prove’ the lying conduct was not lying.
Where the skill will be needed is in decided how far should the law extend. For example, at the last election my sister changed her mind and voted Liberal based on statements at her christian church (presumably from the pulpit by a non-tax paying leaner) that Labor’s franking credits policy would substantially reduce her superannuation pension and force her to rely on the now mean spirited ‘safety net’ old age pension. Should the priest/pastor be liable for his/her lying statements? Likewise, should the IPA, BCA or the Minerals Council be liable for their lying, false and misleading reports like, ‘Our report shows Labor’s radical policy to require businesses to pay any tax will cause the Australian continent to lose gravity, peel off from the planet earth and plunge into the sun’, or some similar thing which might only be true when equally ridiculous assumptions are fed into a econometric model invented yesterday? If the answer is no they shouldn’t, then the intended objective of the law would be lost as the political parties would through their donor and lobbying proxies give effect to the same lying deceitful practices.
Mediscare where things started to go seriously off the rails? My, what short memories we have. Was it yesterday or was it the day before we had the 10 lies of John Howard over the GST and the assertions of Meg Lees “Keeping the bastards honest”. Surely these little ‘gems’ had much more effect on the Australian population than Mediscare would have in anyones wildest dreams. No mention ‘children overboard’ and that other great ‘pearl’ of Howards – WMD’s!
“No child will live in poverty”. “we will plant a billion trees” (from the least credible creature ever to slouch around Parliament – Mr “Whatever I Can Take”), “GST is cremated, dead & buried, never ever”, and the Rodent’s sole honest utterance, “there are core & non-core promises!”, “No cuts to the ABC/NDIS/health or education”.
It would be easier and more illustrative were publicity given to honest, truthful statements though it’s hard to think of a body with less regard or understanding of the concept than the reptiles of the meeja.
You can add:
Keatings refusal to acknowledge the GST was his own initiative.
Howard’s claim the ONA told him firetrucks were actually WOMDs. (Greatest lie of modern politics)
Surely the “budget emergency” was a lie, especially after Abbott’s ultimate solution was to double it.
The lies may seem small to start, but can lead to generational damage. Reference to Howard and Keating.
And at its heart, the Mediscare campaign was quite accurate. While it was dodgy for the ALP to make it look like the message came from Medicare, the content of the message was true – the LNP are out to privatise Medicare – not in one fell swoop; that would be political suicide. But they are gradually contracting out Medicare, Centrelink and Immigration to private contractors like the dodgy Serco.