Pre-poll voting
(Image: AAP/Bianca De Marchi)

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 However, after both major parties realised what this meant, it was quickly repealed altogether a year later.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.