Inside Story

The slippery slope of officially sanctioned lying

It’s time to act before deceptive campaigning gets completely out of control

Mike Steketee 12 July 2019 1534 words

Truth in political advertising? Zali Steggall, who pledged to pursue the issue if elected, shown here with Labor leader Anthony Albanese at the opening of parliament on 2 July. Lukas Coch/AAP Image

Being caught lying has consequences for most of us, ranging from a stern rebuke to a spell in jail. But not for those engaged in politics, where people can fib away not only with impunity but with an official imprimatur.

In the 2016 election, Labor invented the scary claim that a Turnbull government would privatise Medicare. There was no such plan in the Coalition’s top or even bottom drawer, if for no other reason than that such a move would be political suicide. Though it is impossible to prove what role it played, Mediscare is now generally believed to have been a major factor in pushing the Turnbull government to the brink of defeat.

Payback came in this year’s election, with lies from the Coalition and other anti-Labor groups about Labor’s “death taxes,” “car taxes” and unlikely plan to confiscate tradies’ utes apparently contributing to Scott Morrison’s miracle election win. If lying so blatantly pays so well, then an escalating arms race becomes inevitable. And the consequences beyond the next election? What little trust we have left in democratic politics could easily go down the gurgler.

Ask the major parties what can be done about it and they say that these things are best sorted out in the cut and thrust of political debate, with free speech uninhibited and voters deciding which claims or counter-claims to believe. There are just too many grey areas, they say, for hard and fast judgements to be made about political claims.

Defenders of the present system are buttressed by the fact that lying is officially sanctioned. The most spectacular recent example comes from Britain, where an opponent of Brexit took a civil action against Boris Johnson for claiming during the referendum campaign that the British government paid the European Union £350 million a week.

Sir David Norgrove, chair of the UK Statistics Authority, described Johnson’s claim as “a clear misuse of official statistics.” According to Full Fact, an independent fact-checking service, net British payments to the EU were less than half that figure.

The case against Johnson was based on the argument that he had abused public trust in his office by making statements that were false and misleading. In May, a magistrate’s court ruled that Johnson had a case to answer; in June, it was overruled by the High Court.

In its judgement, released last week, the High Court said that the magistrate had erred in finding that Johnson was acting as a public officer when he made the statements. Moreover, the scope of legislation covering the making of false statements was restricted to reflections on the personal character or conduct of a candidate during an election campaign. “Parliament must deliberately have excluded any other form of false statement of fact, including those relating to publicly available statistics,” the judgement added. No politician could ask for a better endorsement of lying.

Successive Australian parliaments have done much the same as Britain’s. The Australian Electoral Commission, or AEC, polices the closest thing we have to sanctions against misleading and deceptive behaviour during campaigns. But it can only act on conduct that affects the process of casting a vote. Not only are the powers narrow but the AEC interprets them very strictly and shies away from any role in determining truthfulness.

In one case during the last election that received little publicity in a crowded field, voters in the Queensland electorate of Dickson were handed fraudulent flyers claiming to show “how to vote for a minor party or independent” but placing preferences for Peter Dutton above those for Labor. This effectively meant he would benefit from these unsuccessful candidates’ votes when their preferences were distributed, and was contrary to the actual preference allocation of the candidates.

Seven News traced the person who had authorised the flyer to a house that displayed a sign advocating a vote for Dutton. The AEC told Seven that the publication wasn’t in breach of the law because the flyer didn’t purport to be an official how-to-vote card. Perhaps not: it is just that it was deliberately designed to mislead voters.

In three Melbourne electorates, Chinese-language signs with Liberal Party authorisation and the same purple colour used in AEC notices advised voters on the “correct way to vote: on the green voting card, put preference 1 next to Liberal Party.” The AEC said it could take no action here either, because the signs complied with requirements on authorisation and positioning. It was another effective sanctioning of unethical behaviour.

Circulating false information about an opponent’s policies, such as Labor’s alleged death taxes, is arguably more serious. Many more voters can potentially be influenced, particularly under a compulsory voting system in which people often pay scant attention to politics but can be influenced by scare campaigns.

Ask the public and, unsurprisingly, they are not in favour of officially sanctioned lying. A poll commissioned by the Australia Institute after the 2016 election found 88 per cent support for truth-in-political-advertising legislation enabling parties and candidates to be fined for false and misleading advertising in the same way as companies.

Parties may increasingly follow public opinion rather than lead it, but in this case they are quite willing to make an exception. The challenge is how to reform a system from which the major parties believe they benefit.

Zali Steggall, the independent candidate who vanquished Tony Abbott in Warringah, made integrity in politics a key component of her campaign. As well as supporting a national anti-corruption body, a restoration of the principle of ministerial responsibility, an independent public service and fixed four-year terms of parliament, she argues for a parliamentary fact-finding office and a law to enforce truthfulness during political campaigns. Her wish to make truth-in-advertising legislation a priority in this term will find support among other independents and the Greens.

Persuading the major parties will be harder, but there is at least a sign of a crack in the wall there as well. Jason Falinski, the Liberal MP for the seat of Mackellar, which adjoins Warringah, also came out during the last election supporting truth-in-advertising legislation. “We definitely need rules in political advertising to make sure that people are not misleading the voters when it comes to making a decision about who to vote for,” he said. “We have truth in advertising across the board: it just doesn’t apply to political campaigns.”

Consumer law provides penalties for businesses that create a false or misleading impression through advertising, packaging or online shopping services. Exaggeration, particularly when consumers can easily identify it — along the lines of “our steaks are the best in the world” — is allowed but claims that leave a misleading impression in the minds of reasonable people are a breach of the law.

According to A.J. Brown, professor of public policy and law at Griffith University and a board member of Transparency International, there is no reason similar provisions cannot be applied to political discourse. “You can create an offence for conduct that is either deliberately or recklessly misleading and deceptive,” he told me this week. “You can include the same sort of test as for competition and consumer law: whether a reasonable person would be induced to act differently if they had not followed the misleading and deceptive information.”

Brown argues we have gone beyond the point where misdemeanours by rogue elements are not frequent or serious enough to justify a new law. Now is the time to act, “before we go any further down this slippery slope.” The AEC could undertake investigations and, if necessary, refer cases to the police or a national integrity commission. Other than fines, penalties could include withdrawing or reducing public funding to offending parties or candidates.

Legislation of this kind would not be unprecedented. South Australia and the Northern Territory already have laws covering advertisements and other election material that is inaccurate and misleading to a material extent. Complaints in South Australia are handled by the state’s electoral commission, which has required advertisements to be withdrawn and retractions to be published. It can also pursue legal action, although it has not so far done so. A similar law was introduced federally by the Hawke government in 1983, but it was repealed before it could apply to the following election.

Graeme Orr, law professor at Queensland University, is another advocate of reform. “The level of trust has gone down so far that it is salutary to have something on the books,” he says, adding that there is no evidence that the South Australian legislation has had an excessively chilling effect on free speech.

Orr concedes such a law can be hard to enforce, particularly in relation to anonymous online material. It also can be difficult to apply remedies in the limited time before elections. But he believes the South Australian law has had a beneficial, if limited, effect on behaviour and that a federal law could do the same if it clamped down on the worst excesses during election campaigns.

Expecting the major parties to call a truce in the battle of escalating lies is a big ask. But given the level of trust in our political system, their ultimate survival may depend on it. •