Inside Story

Truth rears its ugly head

We all want political advertising to be truthful. The devil is in the detail

Michael Maley 21 May 2024 1847 words

“Truth” viewed expansively: independent MPs Kate Chaney and Zali Steggall with the Australia Institute’s Bill Browne. Mick Tsikas/AAP Image

Requiring political advertising to be truthful — an option discussed or pursued in one way or another for more than a century — has lately been given additional salience by the release of private members’ bills sponsored by several independent federal MPs, including Zali Steggall and Kate Chaney. Last month, special minister of state Don Farrell flagged that the topic was under discussion with opposition, small-party and independent MPs.

Part of this renewed interest was fuelled by last June’s interim report of the inquiry into the conduct of the 2022 federal election being held by the Joint Standing Committee on Electoral Matters. (Such an inquiry takes place after every election.) A majority of the committee — but not its Coalition members — recommended that the government legislate “for the introduction of measures to govern truth in political advertising” taking account of South Australia’s well-known provisions.

The history of federal parliament’s previous attempts to deal with the problem is a chequered one. A provision inserted in the Commonwealth Electoral Act in February 1984 survived for barely eight months before being repealed prior to the election in December that year, the repeal having itself been recommended by the joint committee’s predecessor. That experience alone suggests the task of coming up with a workable regulatory framework is by no means straightforward.

Three main policy questions need to be answered in order to develop a useful scheme. What should be the scope of any legal prohibitions? How, and by whom, should they be enforced? What sanctions should be available to enforce the scheme?

Past federal efforts have focused relatively narrowly on the “truth” of statements of fact. A regulation put in place by the Hughes government thirty-one days before the 1917 conscription referendum criminalised the making, verbally or in writing, of “any false statement of fact of a kind likely to affect the judgment of electors in relation to their votes.”

The shortlived 1984 amendment to the Electoral Act, based on the 1917 regulation, had a similar reach, and would have applied only from the issue of the writ for an election through to the end of polling. Section 113 of the South Australian Electoral Act also deals exclusively with false statements of fact, but is not explicitly constrained to apply only at election time.The various bills introduced since 2022 by the independents are rather more expansive. Kate Chaney’s Electoral Legislation Amendment (Fair and Transparent Elections) Bill, for example, would make it an offence to publish electoral matter that:

contains a statement in relation to a matter of fact (including an implied statement) that is:
(a) misleading or deceptive to a material extent; or
(b) likely to mislead or deceive to a material extent.

The key point here is that a literally true statement might still fall within the scope of the offence. The motivation of the bill is understandable: statements intended to convey a false impression can be phrased so as to be literally true. The problem, however, is that it would be much less clear whether a particular statement was or was not illegal; and it is likely that many would, probably by design, fall into a grey area. To give but one example, it is common these days for campaign operatives to scrutinise the social media of opposing candidates with the aim of finding some past embarrassing statement. When found, these are typically disavowed by the said candidates with words to the effect that they have been “taken out of context,” that their views have changed, that the statement “no longer reflects who they are,” and so on. It is a nice question whether the publication of the embarrassing statement without reference to its subsequent disavowal would be “likely to mislead or deceive to a material extent.” The aggrieved candidate would no doubt say so; the campaign operatives might well seek to defend their position by reference to the principle enunciated by Maya Angelou: “When someone shows you who they are, believe them the first time.”

Clearly, any uncertainty about what a prohibition covers will significantly complicate the enforcement process — a concern well reflected in the joint committee’s report. While it seems to have been generally assumed that any scheme would require some sort of government regulator, alternatives do exist.

One option is to leave it to those aggrieved to go directly to court. Section 383 of the Commonwealth Electoral Act already confers standing on candidates (as well as the Australian Electoral Commission, or AEC) to seek injunctions from the Federal Court to restrain breaches or anticipated breaches of the Act; it could if necessary be expanded to include people such as registered officers of political parties. The advantage of such an approach is precisely that it would not be cost-free: applicants would have to be prepared to cover their own costs (and possibly those of other parties to the litigation) if they lost, and to suffer the embarrassment of a defeat in court. Such considerations would tend to discourage hopeless or speculative applications, and the weaponised pursuit of complaints en masse with the primary purpose of disrupting opponents’ campaigns. Against that, a more costly avenue for seeking recourse would tend to advantage better-resourced campaigners.

A second remedy already available is that of a petition to the Court of Disputed Returns. That, however, would have the disadvantage that it will generally only succeed if the court is satisfied that breaches of the law were likely to have affected the election result; and that would usually be extremely difficult to establish.

A third enforcement mechanism would see a government regulator exercising one or more of a range of different possible powers, including the making of orders to withdraw statements and/or publish corrections; the seeking of injunctions; or the imposition of penalties. The joint committee gave detailed consideration to three possible regulators at the federal level — the AEC, the Australian Communications and Media Authority, and the Australian Competition and Consumer Commission — opting on balance to recommend that the AEC should take on the role (as does the Chaney bill).

But the AEC’s opposition to being made an arbiter of truth in political discourse has been a matter of public record for decades, and was recently reiterated by its head. The problem it would face is clear: the recently demonstrated “Trumpian” willingness of some political players to attack the AEC on spurious grounds has emphasised the challenge the organisation now faces in maintaining one of the key underpinnings of Australian democracy: public trust in its management of elections.

Last year’s controversy over ticks and crosses as referendum votes shows the fragility of the situation. On that issue, the AEC found itself mired in controversy even when it was merely restating the approach taken at the 1999 republic referendum on the basis of legal advice that was ultimately affirmed in 2023 by both a single judge and a full bench of the Federal Court. If political players can seek to cast doubt on the AEC’s impartiality over an issue as comparatively trivial as ticks and crosses, one can only imagine the sorts of attacks that might flow from the AEC’s acceptance or rejection of complaints about the truth of advertisements.

The appeal of involving the AEC flows from the hope that its long-established credibility would flow into its administration of truth-in-advertising provisions. The risk, however, is that the flow would be in the opposite direction, and any controversy arising from truth rulings would instead damage the AEC’s reputation.

A further point to be emphasised about both the older and more recently proposed approaches to the problem is that the possible subject matter of disputed statements is not constrained. For that reason, courts or regulators could find themselves expected to adjudicate disputes on highly technical issues arising from campaign advertisements, such as the safety of vaccines or of nuclear power.

An additional complication is that the AEC has only a relatively small legal department, which would be likely to require massive augmentation to deal with complaints about untrue communications.

Finally, the sheer level and intensity of work faced by top managers within electoral commissions at election time is not always appreciated. A function as potentially politically controversial as truth in advertising would inevitably take up much of the time of the electoral commissioner and the AEC’s most senior staff, giving rise to the risk that other critical problems might receive less attention than they warrant.

Some of the support for having a government regulator seems to be based on an assumption that regulators would be prepared to act more quickly than a court in the stressed environment of an election campaign, where falsehoods can rapidly gain traction and do irreparable damage. That, however, is by no means certain.

Regulators, and particularly electoral commissions, will be conscious that any decisions they make will inevitably benefit some players and disadvantage others. They will therefore primarily be concerned with ensuring that all of the steps they take are defensible in the light of their core values of transparency, accuracy and political neutrality. Such an approach takes time: to assess initial complaints; to get further and better particulars if necessary; to seek a response from the target of the complaint; to obtain legal advice; and possibly to prepare a detailed statement of reasons for any decision, in anticipation either of litigation or of post-election parliamentary scrutiny. The joint committee highlighted in its interim report that the SA Electoral Commission can easily take ten days to consider and act on a complaint.

A final point to emphasise is that the potential deterrent effect of legislation would ideally be so strong as to make follow-up enforcement a last resort. For that to succeed, however, the penalties in the Act would need to be eye-watering. The Chaney bill proposes a maximum penalty for transgressions of fifty “penalty units” (currently a total of $15,650), but that might well be regarded as small change for malevolent players seeking to influence an election result.

A stronger approach would be to impose not just monetary penalties but also a suite of disqualifications of a type that could make a conviction enough to end a political career. Section 386 of the Commonwealth Electoral Act already disqualifies anyone convicted of electoral bribery from holding a seat in parliament and from being a candidate for a period of two years from the date of conviction. That provision could easily be extended to include serious breaches of truth-in-advertising requirements, and with a much longer disqualification period.

An even more potent approach would involve banning convicted persons from holding any federally funded employment (including under the Members of Parliament (Staff) Act) or any office in a registered political party (on pain of deregistration of the party). The nuclear option would be the enactment of complementary federal, state and territory legislation that would give rise to disqualifications at all levels of government for offences at any level.

A willingness on the part of the supporters of change to countenance such a powerful penalty scheme would be a genuine indicator of the strength of their commitment to the elimination of false political advertising. •