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From Rhetoric to Reality: Truth in Political Advertising and Australia’s Democratic Integrity

By Nic Carroll



As mis and disinformation continue to grow globally, Australia’s democracy hangs in the balance, teetering between integrity and deception. While the impending decision to introduce legislation regulating truth in political advertising holds the key to safeguarding this balance, whether it will emerge as a beacon of truth or another casualty of political manoeuvring remains uncertain.


Under Australian Consumer Law, ‘a person must not in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive’. This standard must be adhered to throughout all areas of one’s business, including advertising to consumers [1]


If we compare the conduct of our politicians', however, a distinct double standard arises. Though businesses are bound to practices requiring their strict adherence to the law, it remains perfectly legal for politicians to lie in political advertising [2]. While s329(1) of the Commonwealth Electoral Act prohibits any information ‘that is likely to mislead or deceive an elector in relation to the casting of a vote’, the High Court’s interpretation in Evans v Crichton-Browne critically limits the Act’s reach [3]. Rather than extending to the preceding campaign and general campaign period, the Act’s scope is instead restricted only to the mechanical act of casting the vote, subsequently reducing its effectiveness against mis and disinformation [4]. Exacerbated by the revocation of a short-lived amendment targeting all untrue political advertising at a Commonwealth level in 1984, the introduction of legislation responding to the issue has remained mired in broken promises and ambiguous details. 


In their absence, mis and disinformation throughout political advertising have continued to grow. Ranging from Labor’s 2016 “Mediscare” campaign to the Coalition’s 2019 “Death Tax” advertising and the more recent claims of ‘Election fraud’ promoted by One Nation, Australia’s democracy has suffered as a consequence [5]. With up to 73% of the voting population impacted by political advertisements known ‘to be misleading’ in the 2022 election alone, the capacity for these ‘scare campaigns’ to inflict serious damage on parties and candidates, while detracting from core policy issues highlight the necessity for electoral reform [6].


Considering their impact alongside the overwhelming support from Australians for regulations ensuring truth in political advertising following the failed Voice Referendum, it is hardly surprising momentum has increased to resolve the issue [7].


Recently, Special Minister of State Don Farrell flagged the likely introduction of electoral reform legislation by the middle of the year. This reform would focus on imposing spending caps on electoral donations and enforcing truth throughout campaigns under a model resonant to South Australia’s long-standing Electoral Act [8].


Under s113 of South Australia’s legislation, a person is ‘guilty of an offence if the advertisement contains a statement purporting to be a statement of fact that is inaccurate and misleading to a material extent’ [9]. While the model excludes emerging areas of disinformation, including unauthorised speech and social media which cannot be considered advertising, it offers a viable framework to ensure constitutional validity.


By restricting the scope of their legislation while facilitating discourse in a manner which continues to support the ‘free and informed choice of electors’, the South Australian model remains constitutional with regard to Implied Freedom of Political Communication [10]. Determined in Cameron v Becker, the need to ‘balance’ the reach and burden of the legislation was integral to its constitutionality, with subsequent cases including McCloy and Langer reinforcing the need to avoid excessive constraints on speech, even where it comes at the expense of fully limiting dishonesty [11].


Regardless of their scope, their benefit to improving Australia’s system of representative democracy remains clear. As one of only twenty one nations requiring compulsory voting, all Australian electors stand to benefit from the enforcement of truth in political advertising [12]. Critically, their regulation of advertising reduces the barriers to reliable information for a large swathe of the voting population while encouraging active participation in a manner which supports and encourages debate on legitimate policy issues.


Australia’s adoption of the legislation will strengthen electoral processes in a manner which protects from populist rhetoric, harmful disinformation and the leaders which use these tactics for political gain.


Further, with the ongoing emergence of technologies including deepfakes, the number and complexity of dishonest political advertising will continue to grow [13]. While traditional methods of mis and dis information have typically been combated through analysis of authorised sources and statements by individuals, deepfake technology allows interfering parties the opportunity to obscure fact from fiction. Specifically, the rapid development in a subfield of AI concerning ‘General Adversarial Networks’ has dramatically improved the authenticity of deepfakes, thus making it increasingly easier for neural networks to connect our brain’s perception of the videos to their genuine creation [14].


While Federal elections to date have avoided their influence, Queensland’s 2020 state election revealed their problematic nature for future election campaigns. The distribution of a deepfake video by lobby group Advance Australia of the ex-State Premier Palaszczuk denouncing her party amassed up to one million views across platforms, reinforcing AI’s severe impacts on electoral processes [15].


Visiting Fellow at the ANU College of Law, Andrew Ray highlights the ‘very limited protections’ under Australia’s current electoral laws to deal with the threat of deepfake technology. In response, he supports legislation which increases responsibility on publishers and distributors to prevent dishonesty in political advertising to ensure the technologies proper use in future election campaigns [16].


Clearly, to safeguard Australia’s representative democracy, legislation regulating truth in political advertising that combats both existing methods of mis and dis information alongside those likely to emerge in the future must be introduced. Whether it materialises or becomes just another example of political dishonesty hangs precariously in the balance, though it remains certain that whatever decision is made will impact the integrity and honesty of Australia’s democracy far into the future.




 


Endnotes

[1] ‘Competition and Consumer Act (2010) s 18 (1) (Cth)’.

[2] ‘Commonwealth Electoral Amendment (Stop the Lies) Bill 2022’ , Zali Steggall’s Website, 28 November 2022.

[3] ‘Commonwealth Electoral Act (1918) s 329 (1) (Cth)’.

[4] Evans v Crichton-Browne (1981) 147 CLR 169. 

[5] ‘Explanatory Memorandum’ , Commonwealth Electoral Amendment (Stop The Lies) Bill 2022, 28 November 2022.

[6] ‘Exit Poll: Misinformation in the Federal Election Campaign’, The Australia Institute, June 2022.

[7] ‘Overwhelming support for truth in political advertising laws following referendum’ , The Australia Institute, 19 October 2023.

[8] ‘Peter Dutton says truth in political advertising ‘probably welcome’ but criticises Labor as scare campaign ‘experts’’ , Paul Karp, ‘The Guardian Australia’, 14 March 2024. 

[9] ‘Electoral Act (1985) s 113 (2) (South Australia)’.

[10] ‘Joint Annotated Submissions of the First Defendant and the Attorney-General of the Commonwealth in Zhang v Commissioner’, First Defendant and Attorney General, 9 December 2020.

[11] Cameron v Becker (1995) 64 SASR 238. 

[12] ‘Suffrage’, United States of America Central Intelligence Agency, 2024.

[13] ‘Deepfake democracy: Here's how modern elections could be decided by fake news’, Alexander Puutio, World Economic Forum, 5 October 2020.

[14] Ibid.

[15] ‘Disinformation and elections in the age of artificial intelligence’, Queensland Government, 29 February 2024.

[16] ‘Disinformation, Deepfakes and Democracies: The Need for Legislative Reform’, Andrew Ray, University of New South Wales Law Journal, 2021.

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