Oliver Yates
(Image: Getty)

Political parties have been throwing around a growing list of suspect claims and counterclaims during this election campaign, leaving Australian voters caught in the crossfire with no way of discerning the truth.

It is not unlawful for anyone running for office to use misleading and deceptive conduct in political advertisements under the Electoral Act — and politicians rely on this loophole.

Former Liberal Party member Oliver Yates, who is running as an independent candidate in the Victorian seat of Kooyong, has learned this first-hand. Yates has been on the receiving end of what he believes is deceptive political advertising by the Liberal Party, and is now urging for law reform.

Yates, who is running against Federal Treasurer Josh Frydenberg, sent a legal letter to the Liberal Party demanding they take down what he claims is a misleading website.

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The response he got revealed the Liberal Party was in part relying on the fact that politicians have no responsibility to tell the truth during election campaigning. The letter from the Liberal Party, seen by Crikey, said that the only exception to deceiving voters was when it came to casting votes. And they’re right.

The Liberal Party’s legal letter read:

Misunderstanding of Electoral Act:

Our primary concern, however, is the apparent misunderstanding of section 329 of the Electoral Act, which prohibits misleading and deceptive conduct in relation to casting a vote.

Once again we refer to the High Court authority. The scope of section 329 was carefully considered in the case of Evans v Crichton-Browne[1981] HCA 14. The High Court of Australia constrained the scope of that phrase to mean the actual voting process, not the broader process of deciding for whom to vote. 

What are the Liberal Party claiming? 

The Liberals are making claims on a website titled “Can’t Trust Oliver Yates” that Yates’ time as a board member of fossil fuel company Linc Energy, which sold coal tenements to Adani, are contrary to his current climate policy stances.

However, Yates said he has always been transparent about his time on the board and previously wrote on his website that he joined the company in late 2010 when the company had “just sold its major coal assets and was changing strategic direction to focus on cleaner energy solutions”.

Yates said his time with Linc Energy was being mischaracterised, because he was working on “developing technologies to produce synthetic forms of gas, by gasifying coal underground that could be made into hydrogen, diesel and aviation fuel”.

He said he resigned 10 months later when the Queensland government “started to encourage coal seam gas activities across the state”.

Yates said he’s “been the subject of a untruthful, misleading and deceptive smear campaign, about a short role I played on the board of a company some years ago”.

Crikey has contacted the Liberal Party for comment on Yates’ claims. None was given by deadline.

Calls for legal reform

“Laws that allow politicians to deliberately lie and mislead are laws that need to be changed,” Yates told Crikey. “People are sick of politicians making one rule for them and another for everyone else. We must change these laws, so that elections are run on the actual policies and positions of the parties.”

A national poll by The Australia Institute showed Australians overwhelmingly want laws that call for truth in political advertising. After the 2016 federal election, 87.7% of respondents said the Senate should pass “truth in political advertising” legislation. Only 5% of respondents said they did not support legislation so that political parties and candidates could be fined for false and misleading advertising in the same way companies are.

Misleading claims are nothing new in political campaigning. In 2016 Labor started a campaign claiming the Liberals would privatise Medicare, when the Libs were in fact only looking at ways to update the payment system. It came to be known as the “Mediscare” campaign. This year the Liberals have been accused of running a scare campaign against Labor’s plan for electric cars.

History of truth in political advertising

The regulation of truth in political advertising has been at the margins of political debate for decades.

There was — briefly — a Commonwealth prohibition on electoral advertisements containing statements that were “untrue”or “misleading or deceptive” from 1983 to 1984, before a parliamentary committee determined such a prohibition was unworkable.

State parliaments has also investigated — or, in the case of South Australia, legislated — such bans. The South Australian approach avoids nebulous — and for politicians, very convenient — definitions of “truth” by relating the offence to statements of fact in authorised election advertisements that are “inaccurate and misleading to a material extent.”

The SA laws have been challenged and upheld by the SA Supreme Court, but are of fairly limited impact: parties can only be fined $25,000, which politicians may see as a small price to pay for election victory.

They also don’t cover more general political debate, and are easily circumvented if politicians have a media outlet happy to support them. The Coalition has a long history of handing false stories critical of its opponents to News Corp journalists, who give them front-page coverage.

Like politics, journalism is effectively self-regulated and beyond the reach of the kind of “misleading or deceptive conduct” laws that apply to corporations. That might also explain why journalists and politicians are routinely found at about the same very low-level trust in community surveys.