Calls for some sort of regulation of truth in political advertising are once again being made in Australia, stirred up, it seems, by the success of Labor’s Medicare scare campaign. Malcolm Turnbull is suddenly keen for it, telling the ABC:

“We are going to have a very close look at a whole range of issues associated with this election … it is something about which Australians should be very concerned; that powered by millions of dollars of union money, the Labor Party came close to winning this election based on a shocking lie.”

And that bastion of support for free speech, The Australian, has also demanded truth-in-advertising laws for politicians. Nick Xenophon is an advocate for them as well, and has been for some time; his senate success puts him in a strong position to push for them.

Let’s leave aside for a moment the Coalition — responsible for kids overboard, “interest rates will always be lower under the Coalition”, the Whyalla wipeout, no cuts to health and education, Labor’s war on business, the economic benefits of corporate tax cuts, the stockmarket being destroyed by negative gearing reform and the demonisation of refugees; the mob who gave us Tony Abbott, the first post-modern prime minister — complaining about untruthful scare campaigns. Let’s also skip that News Corp fiercely resists any scrutiny by an independent body of its partisan campaigning and misreporting. What’s the benefit of truth in political advertising?

For anyone with a memory longer than five minutes, this is very familiar territory. Truth in political advertising is one of the hardy perennials of political debate in Australia both federally and at the state level. Indeed, we briefly had such laws in 1984 under the Hawke government, and the matter has routinely been considered by parliamentary committees reviewing the conduct of successive elections and regularly discussed ever since, especially after FreeTV Australia decided in 2002 that it no longer had the power to censor political ads under the then-Trade Practices Act.

And while such laws would be problematic given the High Court has found an implied right to political communication in the constitution (the Hawke government had tried to ban all political ads during elections, the TV networks, which make a motza out of them, took it to the High Court and won, and we’ve been enduring campaign ads ever since), the South Australians have a reasonably robust model on their books. Section 113(1) of the Electoral Act 1985 specifically focuses on “an electoral advertisement” that “contains a statement purporting to be a statement of fact” for regulation, if that statement is inaccurate or misleading to a “material” extent. That narrower focus on statements of fact would probably pass the High Court’s hurdle. And it applies to all election advertising, meaning it would capture third-party advertisements, not just those of candidates and parties.

Sounds all well and good, except … the South Australian Electoral Commission hates it and wants to be rid of it, in particular the bit that enables the electoral commissioner to order parties and candidates to withdraw ads on the fly during campaigns — which has plunged what should be an institution seen as beyond reproach into politically charged judgment calls during campaigns.

Say a similar law applied federally during the just-finished campaign. The Liberals complain to the AEC that Labor is purporting to state a fact that the government wants to privatise Medicare. The AEC would have to rapidly decide whether the potential outsourcing of the payments system of Medicare constituted “privatisation” — an area where it has no expertise. What if it decided Labor was grossly overstating the case but it wasn’t completely untrue because the government had been considering outsourcing? At what point does a lie become “material”? A decision either way would draw inevitable criticism from one side or the other.

And remember the laws would only apply to advertisements, not to political speech per se. Labor might not have been able to use the word “privatise” in a TV ad but it wouldn’t have stopped Bill Shorten using it over and over. Nor would Scott Morrison have been prevented from talking about Labor’s “war on business”.

One argument — reflected partly in FreeTV’s 2002 decision — is that if truth in advertising is good enough for companies, it should be good enough for politicians. That’s a nice example of the relentless monetisation inherent in liberal economics — political speech is just another commodity that consumers buy and sell; the marketplace of ideas is just another market to be regulated under competition and consumer laws. Except, on that basis, why don’t we subject the major parties to competition law as well, when we have a duopoly that controls 70% or more of the market? And for that matter, why do we compel people to buy a product, through compulsory voting, even if they don’t want to? Moreover, we compel people not merely to buy a product, but then nominate what other products they want to buy if the one they want isn’t available. Plainly, we don’t seriously think democracy is just another market and political speech just another product.

Further, on consumer protection and competition law, in both cases, we have agencies that have consumer affairs and competition expertise protecting the community interest. In contrast, truth in political advertising ultimately comes down to a model of some official, whether judicial or bureaucratic, having — almost certainly unwillingly — to pass judgment on claims outside their area of expertise in the heat of political warfare.

And there’s an intrinsic elitism to these arguments, a nanny state assumption that voters are too easily gulled by the manipulative marketing of the advertising Svengalis hired by political parties, that some unelected elite figure is required to protect them from themselves. Indeed, it’s fascinating to see right-wing outfits like News Corp, which normally spruiks the common sense, salt of the earth wisdom of “ordinary Australians” at the expense of the liberal delusions of “elites”, suddenly yearning for bureaucratic regulation of democracy. And the problem is, even if we adopted the South Australian model nationally, it would achieve very little.

Ultimately, we’d still be reliant on the good sense of our fellow citizens to see through baseless campaigns.

Peter Fray

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