Australia’s Experience

Abstract

We now explore legal experiments in truth in election advertising in the Australian context, including two at the Commonwealth level (later repealed) and one at the state level (we explore South Australia’s experience in Chapters 8 and 9). We also show that some jurisdictions have adopted what we refer to as ‘pseudo’ truth in political advertising laws that appear to perform the same function as those we propose but do not due to the operations of an influential precedent. There is also some discussion of cases where states came close to adopting truth in political advertising legislation but failed to; we examine why.

Introductory Comments

We now provide a detailed legal and political history of debates about—and experiments in—truth in election advertising in the Australian context, including two at the Commonwealth level (later repealed) and one at the state level (we explore South Australia’s experience in Chapters 8 and 9). We also show that some jurisdictions have adopted what we refer to as ‘pseudo’ truth in political advertising laws that appear to perform the same function as authentic TIPA provisions but do not.

At various times, Australian jurisdictions—at the Commonwealth, state and territory level—have entertained the idea of introducing TIPA provisions. Notwithstanding the recent surge in popular support for TIPA laws discussed already, they have been passed and subsequently repealed at the federal level twice (in 1917 and 1983) and have been seriously contemplated by legislative inquiries in Commonwealth and state parliaments. The most notable of these inquiries are the Queensland inquiry of 1996, and the Victorian inquiries of 2010 and 2021. Since the repeal of the federal provision in 1984, routine federal election inquiries—particularly throughout the 1990’s—often addressed, albeit dismissively, the possibility of TIPA laws. Narrowly speaking, nearly all Australian jurisdictions currently have what we would consider ‘pseudo’ TIPA laws. However, these laws have been rendered somewhat toothless by a notable High Court precedent that we explore in detail in the following section.

‘Pseudo’ TIPA laws

There are numerous state and Commonwealth provisions, some of which have already been mentioned, which may appear to be prima facie TIPA provisions. These include:

• Electoral Act 2017 (NSW) s 216;

• Electoral Act 2002 (Vic) s 84;

• Electoral Act 1992 (Qld) s 185;

• Electoral Act 1907 (WA) s 191A;

• Electoral Act 2004 (Tas) s 197;

• Electoral Act 2004 (NT) s 287.

While they differ in their structure, these provisions generally refer to statements that are false and/or misleading in relation to the casting of a vote. Such provisions are therefore interpreted in light of the Evans decision (see below) insofar as they only relate to the mechanical act of casting a ballot (preference expression) rather than the broader and more consequential process of forming a voting preference (preference formation) in the period preceding an election. This was recognised by George Williams regarding similar ‘pseudo’ provisions proposed in 1997: ‘[E]ach of the above provisions can only have a minimal impact on preventing false and misleading statements of fact during election campaigns’ (Williams, 1997: 2).

It has been suggested that the Northern Territory’s provision may be construed as a proper TIPA law (see Elections ACT, 2021: 54), but the Northern Territory Electoral Commission has explicitly rejected the claim (Northern Territory Electoral Commission, 2021). We therefore consider it as belonging in the ‘pseudo’ class.

Section 185(2) of the Electoral Act 1992 (Qld) is the most unique of the ‘pseudo’ provisions. The section prohibits ‘knowingly publish[ing] a false statement of fact regarding the personal character or conduct of the candidate’. Section 185(2) is yet to be invoked in a reported decision and would probably operate more akin to s 106 Representation of the People Act 1983 (UK) than a TIPA law designed to prohibit false and/or misleading statements of fact calculated to affect an election result. Given that the provision has not been invoked since its passage almost thirty years ago, it is unlikely that it will be used any time soon.

South Australia, and more recently, the Australian Capital Territory are the only two jurisdictions with currently operable, non- ‘pseudo’ TIPA provisions. In order to partly explain why—or at least how—this is the case, we now investigate Australia’s historical experience with these laws to identify patterns of hesitancy and concern and, in turn, further illuminate what an ideal-type regime should avoid or pursue. We first explore the history of the Commonwealth’s often erratic relationship with TIPA laws.

Commonwealth

Early Developments

The Commonwealth’s, and indeed Australia’s, first experience with TIPA regulation occurred in November 1917. The regulation was passed under the War Precautions Act 1914 (Cth) and read:

42.—(1) Any person who, on or before the polling day for the Referendum, makes or authorizes to be made, verbally or in writing, any false statement of fact of a kind likely to affect the judgement of electors in relation to their votes, or who prints, publishes, or distributes any advertisement, notice, handbill, pamphlet, or card containing any such statement, shall be guilty of an offence:

Provided always that it shall be a defence to a prosecution for an offence under this Regulation if the defendant proves that he had reasonable ground for believing, and did, in fact, believe, the statement to be true.

In 1916, just a year prior, the first of Australia’s conscription referenda had been defeated, leading to a split in the incumbent Australian Labor Party. A plebiscite on a similar proposition was eventually called for in December 1917, albeit on a much weaker proposition. The abovementioned TIPA regulation was passed one month before the second referendum and, being explicitly relevant to the second (1917) referendum and the disinformation that apparently surrounded it, the provision became defunct soon after. It was formally repealed with the War Precautions Act 1914 (Cth) in 1920. A February 1918 article in the Westralian Worker named seven individuals charged with making false statements during the 1917 referendum campaign, including notable figures such as Queensland’s then-incumbent premier Thomas Ryan; according to the article, all had their cases dismissed (Westralian Worker, 1918). Other, early Australian electoral legislation also included content-based regulation which prevented, for example, ‘any untrue or incorrect statement intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his vote’ (See Electoral Act 1902 (Cth) s 180(e) from 1911). For reasons outlined below, provisions such as these are not considered to be authentic TIPA laws.

Joint Select Committee on Electoral Reform (‘JSCER’)—First Report

The Commonwealth’s next encounter with TIPA came over sixty years later in 1983 in the Joint Select Committee on Electoral Reform’s First Report into Electoral Reform. In a brief discussion of misleading electoral matters, the Committee contemplated two notable submissions: one from Geoffrey Lindel, an academic at the Australian National University; the other from the Australian Electoral Office. The Committee condensed the argument of the former submission into three points:

There is a need to review the prohibitions against misleading electoral advertising…There is a need to ensure that those prohibitions extend to electoral advertising by T.V. and radio broadcasting…There is a need to ensure that the Chief Australian Electoral Officer and any affected candidate can seek an injunction to prevent a threatened breach of the provisions against misleading electoral advertising. (JSCER, 1983: 180)

The submission of the Australian Electoral Office communicated similar sentiments and suggested that a ‘provision of a right for candidates to seek an injunction to restrain misleading advertising’ be passed. In light of these submissions, the Committee recommended, inter alia, that the ‘[Electoral] [C]omission be obliged to seek injunctive relief in issues such as misleading electoral advertising’ (JSCER, 1983: 181).

Upon this recommendation, the TIPA provision was hastily passed in the Commonwealth Electoral Legislation Amendment Bill 1983, which amended s 161 of the Electoral Act 1918 (Cth). The amendment added the following offence:

• (2) A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute or cause, permit or authorise to be printed, published or distributed, any electoral advertisement containing a statement—

  • (a) that is untrue and

  • (b) that is, or is likely to be, misleading or deceptive.

To prevent a violation of s 161(2), section 209A of the Electoral Act 1918 (Cth) was amended in the same bill to vest the Australia Electoral Commission (‘AEC’) with power to grant injunctions where an electoral offence has been committed, is being committed or is proposing to be committed. This power related to violation of s 161(2) among other electoral offences; according to the bill’s explanatory memorandum: ‘New Section 209A makes extensive provision for candidates or the AEC to be able to seek injunctions … to restrain breaches or anticipated breaches of any Commonwealth law relating to elections’ (Parliament of Australia, 1983: 72). The same explanatory memorandum was silent on the intention and proposed functionality of s 161(2). This silence may have been associated with the fact that in 1983 the implied freedom of political communication had not yet been found, and legislatures did not need to anticipate or even navigate constitutional hurdles related to communication on political matters.

The injunctive power mentioned was vested in a ‘prescribed court’, which s 209A defined as the Supreme Court of a State or Territory conferred with federal jurisdiction. The construction of the offence in s 161(2) was notable, compared to other current and historical TIPA provisions, in that it made a bold epistemological claim about the ‘truth’ of an impugned electoral advertisement. Most TIPA provisions are concerned with false and/or misleading statements but never go so far as to attempt to prohibit statements that are deemed to be untrue.

Section 161(2) was starkly similar to the offence contained in the amended s 161(1) which stipulated that:

• (1) A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute or cause permit or authorise to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of his vote.

Sections 161(1) and 161(2) are distinguished by the content which they sought to, respectively, prohibit. Section 161(2) was concerned with ‘electoral advertisements’ that are ‘untrue’ and likely to be ‘misleading or deceptive’, whereas 161(1) was concerned with matters that are likely to ‘mislead or deceive an elector in relation to the casting of [their] vote’. These appear prima facie to be very similar—almost identical—provisions. One could reasonably expect matters which are untrue, misleading and/or deceptive to significantly overlap with matters which mislead or deceive in relation to the casting of the vote. But a notable High Court case in 1981, Evans v Crichton-Browne (‘Evans’) ((1981) 147 CLR 169), made an arguably misplaced distinction between the matters contained in s 161(1) and s 161(2); that judgement continues to reverberate through Australian electoral law.

Evans v Crichton-Browne

Evans was a joint judgement by the High Court, sitting as the Court of Disputed Returns concerning three disputed election returns related to the 1980 federal election. The disputed returns were: Noel Crichton-Browne’s election as Senator for Western Australia brought by Australian Democrats candidate, John Evans; former Prime Minister William McMahon’s election to the House of Representatives seat of Lowe in New South Wales brought by Ronald Muscio; and Grant Chapman’s election to the South Australian seat of Kingston brought by Richard Gun of the ALP.

All petitions concerned purportedly false statements claimed to have violated the pre-amendment s 161(e) of the Electoral Act 1918 (Cth), which, in a similar fashion to the post-1983 amendment s 161(1), declared the following an illegal practice:

• (e) Printing, publishing or distributing any electoral advertisement, notice, handbill, pamphlet, or card containing any untrue or incorrect statement intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his vote. (emphasis added)

The joint judgement was concerned with the interpretation of ‘in or in relation to the casting of his vote’, and to what extent (if at all) it related to false campaign statements that affected the process of preference formation. In the court’s words:

The question is, does s 161(e) refer to statements intended or likely to mislead or improperly interfere with an elector in or in relation to his choice of the candidate or candidates for whom he will vote, or does it refer only to statements intended or likely to mislead or improperly interfere with an elector in such a way that his choice when made is not properly expressed or given effect by the physical act of voting? (Evans: 201 (Gibbs CJ, Stephen, Mason, Murphy, Aickin, Wilson and Brennan JJ))

This question was answered in Evans, and reasoning applied in the remaining two petitions. We will accordingly focus on the facts and subsequent judgement in Evans.

John Evans, the petitioner, claimed that ‘untrue or incorrect’ statements made by the Liberal Party, including assertions that ‘Australian Democrat senators had in the last Parliament voted with the Labor Party eight times out of ten’; ‘that a vote for the Australian Democrats could be a vote for the Labor Party and could give the Labor Party control of the Senate’; and that ‘the Australian Democrat senators in the last Parliament had been absent for 52 votes out of 192 occasions’ (Evans: 173), violated s 161(e) by misleading electors in relation to casting their vote. Evans’ petition was in some sense an indirect petition; he had alleged that the statements would reduce the overall vote count of the ALP, and, in turn, affect the preference flows to the Australian Democrats.

Applying the apparent ‘natural meaning’ of the words ‘cast a vote’, as well as dictionary definitions, the court determined that parliament was ‘concerned with misleading or incorrect statements which are intended or likely to affect an elector when he seeks to record and give effect to the judgment which he has formed as to the candidate for whom he intends to vote, rather than with statements which might affect the formation of that judgment’ (Evans: 204 (Gibbs CJ, Stephen, Mason, Murphy, Aickin, Wilson and Brennan JJ)) (emphasis added). The court accordingly remained agnostic on the truth of the impugned electoral matters because ‘the question whether any of the statements was untrue or incorrect did not arise on the hearing of the stated cases’ (Evans: 208).

This understanding of the phrase ‘casting of one’s vote’ has remained the authoritative interpretation since Evans. It is solely concerned with the way in which a preference is expressed, rather than the formation of the preference. Construed in this manner, misleading an elector in the ‘casting of their vote’ is confined to false statements about procedural matters affecting the election such as voting time, voting place, or the way in which one fills out one’s ballot. Given that the pre-1983s 161(e) is almost identical so the post-1983s 161(1), we can see that the elements of the offence in the post-1983s 161(1) and s 161(2) are distinct. The former was primarily concerned with statements that mislead in the procedural, ‘preference-expression’ phase of the election, whereas the latter was primarily concerned with the much more elongated ‘preference-formation’ phase of the election.

Petitioners in the cases heard alongside Evans argued that this was an incorrect interpretation of the law. George Masterman QC, representing Ronald Muscio, submitted that the casting of the vote ‘cannot be limited to the physical act of putting the ballot-paper in the ballot box, and that it embraces the mental decision accompanying the act—the making of the choice by the elector of the candidate in whose favour he will mark the paper’ (Evans: 205). This is an interpretation we favour because preference formation and preference expression are intimately related events and the distinction made in Evans strikes us as arbitrary. Nevertheless, the petition was rejected by the court.

The High Court’s decision in Evans remains an influential precedent, particularly as it relates to the ‘casting of one’s vote’. Evans has been cited in notable electoral cases since 1980 but was most recently considered in Garbett v Liu (‘Garbett’) ((2019) 273 FCR 1). Garbett revolved around the use of corflutes written in Mandarin in the seats of Kooyong and Chisholm at the 2019 Australian Federal Election. The corflutes, coloured in purple and white, imitated the official AEC signage colour-way. They were therefore alleged to have violated s 329(1) of the Electoral Act 1918 (Cth), which, word-for-word, contains the same offence as the post-amendment 1983s 161(1) (Fig. 7.1).

Fig. 7.1

The impugned corflute in Garbett

The corflutes were typically placed near or adjacent to AEC material, and the accepted translation was: ‘The correct way to vote: Fill in 1 next to the Liberal Party candidate on the green ballot and fill in numbers from small to large successively in other boxes’ (Garbett: 3–4). The court, in considering Evans, found that the corflutes did mislead electors in relation to the ‘casting of their vote’: ‘[T]he corflutes are properly read, not as an encouragement to vote 1 Liberal, but as a statement first, that to vote correctly … one must vote 1 Liberal, and, secondly, that there was an official instruction of the AEC that electors must cast their votes as indicated’ (Garbett: 38 (Allsop CJ, Greenwood and Besanko JJ)) (emphasis added). The corflutes were authorised by then-acting director of the Victorian Liberal Party, Simon Frost, and not by the Liberal Party candidates standing in the seats displaying the corflutes. The court held that it could not void the elections under s 362(3) of the Electoral Act 1918 (Cth) because ‘there was no real chance that the result of either of the two election was affected. In these circumstances, it is unnecessary to consider whether it be just that … [the candidates] should be declared not to have been duly elected or that either election should be declared void’ (Garbett: 42 (Allsop CJ, Greenwood and Besanko JJ)). If the court had found that the corflutes did indeed affect the election result, then there would have been grounds for voiding the election even though the corflutes had been authorised by Mr. Frost. Section 362(3) of the Electoral Act 1918 (Cth) stipulates that an election may be voided, even if the illegal electoral practice was committed by a third party without the knowledge of the candidate, if the ‘Court is satisfied that the result of the election was likely to be affected’. The court was not satisfied in this instance.

While we agree with the application of Evans in Garbett, its exclusive concern with preference expression, and its seemingly tacit endorsement of deceptive campaign statements is puzzling. Indeed, the Former Victorian Electoral Commissioner, Steve Tully, suggested that the judgement in Evans ‘may have contributed to a feeling that anything goes’ (Victorian Electoral Commission, 2009: 8).

Joint Select Committee on Electoral Reform—Second Report

The Committee’s second report, in 1984, was markedly different in tone and depth from the first report. The Committee noted that their tentative recommendations for TIPA laws, influenced by Geoffrey Lindel’s submission, had been swiftly passed through parliament upon release of the first report in 1983. Despite recommending the creation of the offence in s 161(2), the Committee sought to review its structure only a year after its passage. It should also be noted that there had not been an election between the amendment to s 161 and the Committee’s second report so the Committee could only speculate on the performance of the provision in the absence of any meaningful case law.

The Committee first sought to differentiate between the offence in s 161(1) and s 161(2). Considering Evans, they came to the conclusion that the former related to statements which misled voters procedurally, whereas s 161(2) ‘extend[ed] to statements which affect the elector in [their] decision of choice of candidates’ (JSCER, 1984: 6). The Committee noted criticism of s 161(2) from industry bodies, particularly in relation to the potential burden on publishers (as opposed to authorisers) of the material—a persistent concern for TIPA provisions. Given the criticism, the Committee tasked itself with examining the legislative scheme in s 161(2) and the corresponding power of injunction in s 209. Accordingly, members set out to either retain, repeal or amend the provision based on their findings (Fig. 7.2). They produced the following scheme of options:

Fig. 7.2

A schematic representation of JSCER’s deliberations when recommending the repeal of s 161(2) of the Electoral Act 1918 in 1984 (JSCER, 1984: 9)

The Committee’s first broad concern was whether political advertising ought to be regulated at all, although the proposition that it should was quickly accepted. But controversy remained as to how it should be regulated. The Committee deliberated on competing theories of ‘truth’ in a democracy. Would political ‘truth’ emerge through the usual cut and thrust of political debate? Or should informational integrity be protected by legislative controls like s 161(2)? The Committee remained agnostic on the former, but gradually came to reject the latter. A model of advertiser self-regulation was considered, but it was decided that the responsibility to protect political ‘truth’ should not be put in the hands of industry.

In relation to the wording of s 161(2), the apparent burden on publishers was also contemplated. Construed narrowly, s 161(2) could exert a chilling effect on political discourse, with advertisers opting to not publish political advertisements at all for fear of violating the provision. It was suggested that, were the provision to be kept, ‘placing responsibility for untrue advertising directly on the party or person responsible for the advertisement would be an improvement’ with the qualification that ‘it is based on the assumption that it is possible to enforce truthful political advertising by legislation’ (JSCER, 1984: 17. Emphasis added). This latter consideration was especially salient: ‘The Committee was particularly concerned to establish the criteria which would be adopted by a court to determine whether a political advertisement was “true”’ (JSCER, 1984: 12–15). To address this concern, the Committee parsed s 161(2) and, given that no cases had reached the courts, relied heavily on submissions from then Attorney-General Gareth Evans, as well as existing electoral and commercial case law.

Three elements of the offence attracted the attention of the Committee and these all related to the meaning and scope of the following terms: ‘a statement’, ‘untrue’ and ‘misleading or deceptive’. Evans provided guidance to the Committee on the first matter. In Evans the court held that, in relation to the offence in the pre-amendment s 161(e), the term ‘a statement’ could be ‘one of opinion, belief or intention as well as of fact, and there is nothing in the words of par. (e) to limit the provisions of that paragraph to statements of the latter kind’ (Evans: 207 (Gibbs CJ, Stephen J, Mason J, Murphy J, Aickin J, Wilson J, Brennan J)). Section 161(2) therefore could encompass any class of statement, fact or otherwise. This is different to the current South Australian provision.

The second concern revolved around a statement ‘which is untrue’, which along with ‘misleading or deceptive’, constituted the first and second respective limbs of the offence. The Committee struggled to demarcate the types of statements the provision would encompass. They predicted that difficulties would arise in the court determining whether predictions or opinions, endemic to political campaigning, were ‘untrue’. The two limbs of the offence also presented theoretical issues for the operation of the law. The Committee cited Brennan J’s view in World Series Cricket v Parish: ‘[A] statement which is literally true may nevertheless convey another meaning which is untrue, and be proscribed accordingly’ (World Series Cricket v Parish (1977) 16 ALR 181, 201 (Brennan J)). A statement could therefore fail the first limb and not be strictly ‘untrue’, yet still be highly electorally ‘misleading or deceptive’ and not be captured by the provision, as the offence required that both limbs be present.

The discussion of the phrase ‘misleading and deceptive’ reflected the Committee’s negative sentiment towards the provision. While conceding that courts were apt for dealing with misleading commercial matters, they saw courts as inappropriate arbiters of the veracity of political statements. It was also feared that such a provision would violate the independence of the judiciary: ‘The [C]ommittee is of the view that it is undesirable, both from the point of view of the courts, and the participants of the political process, to require the courts to enter the political arena in this way’. The Attorney-General’s submissions argued that the section could be suitably restricted to false statements of present fact to mitigate these concerns about overreach. But the Committee rejected these proposals, claiming that even a revised version of the provision would ‘penalise not the party with the dishonest intent to deceive the public but the party with poor legal advice’. It ultimately concluded that ‘the section has such a broad effect as to be unworkable’ (JSCER, 1984: 21–23).

The corresponding ability of the AEC or rival candidate to seek an injunction under s 209A of the post-amendment Act also fell foul of the Committee which speculated that ‘an interim injunction could prove an effective tactic for a candidate to obtain publicity’ and that ‘the injunction remedy could cause grave injustice to political parties or candidates and could disrupt the normal political process, if available at the suit of any candidates’. The suggestion to limit the power of injunction to the AEC was also dismissed ‘as it would require the Commission to enter the political fray in deciding whether to seek an injunction’ (JSCER, 1984: 24–26).

The Committee, concluded, unsurprisingly, that while ‘fair’ political advertising was a noble and desirable objective, it was not possible to achieve such fairness by legislative means. It also expressed regret at its enthusiasm for political advertising controls in the First Report:

The Committee notes with some concern the fact that these difficulties were not raised during the debate on the 1983 Bill. This oversight suggests the need for legislation committees to closely examine complex Bills such as this, to ensure that the Parliament is aware of the full implication of every provision. (JSCER, 1984: 26)

Repeal of the provision was therefore recommended as the safest course of action. Amendments to the section would ‘be either ineffective, or would reduce its scope to such an extent that it would not prevent dishonest advertising’ (JSCER, 1984: 27). The Committee opined that false election information should be determined by the electors, and litigated via the law of defamation. Consequently, the short-lived section was repealed in October that year, never having seen a federal election.

Australian Democrats Senator Michael Macklin wrote a scathing dissent to the Committee’s findings. Senator Macklin commented that he could ‘find no support for the recommendation’ and ‘that the Parliament abandoned any attempt to regulate political advertising’ (JSCER, 1984: 45). He did, however, agree that, had the provision been retained, the onus on publishers should be removed and that liability be confined to the authoriser of the advertisement. Macklin saw the regulation of political information as a legitimate and worthwhile pursuit for parliament, suggesting that ‘[i]t would be a denial of essential elements of democracy if all restraints on political advertising were removed’. Macklin accused the Committee and Parliament more broadly of hypocrisy with respect to the relationship between commercial and political advertising. He accused parliament of seeking to regulate the truth of others’ statements, but not of their own: ‘It will bring politics into further disrepute if Parliaments pass laws requiring others in the community to be truthful in their advertisements but to exempt its own’ (JSCER, 1984: 45–50).

Macklin argued that, like commercial advertising, it was naïve to expect voters to be able to discern the ‘truth’ from a flurry of often bombastic political advertising . Macklin referenced the rationale for the passage of the Trade Practices Act 1974 (Cth), that consumers should be properly informed, and extended it to political advertising: ‘I believe that this argument holds true with regard to political advertising as much as it holds true for product advertising’ (JSCER, 1984: 47). Macklin further argued that regulation was necessary to safeguard the informational integrity of elections given that ‘[t]he majority of citizens do not have access to sufficient documentation to enable them to arrive at a reasonable judgment concerning whether or not the advertisement is false or misleading’ (JSCER, 1984: 46). Macklin criticised the Committee’s underestimation of the courts’ capacity to differentiate between statements of fact and opinions, pointing to examples in defamation, criminal and intellectual property law where courts frequently do differentiate. Macklin saw the faulty logic of the committee as amounting to a kind of moral and legal fecklessness: ‘I cannot follow the logic that says that since we cannot stop all dishonest intent therefore we will not try to stop any’ (JSCER, 1984: 47).

As will be shown in Chapters 8 and 9, the design of the South Australian regime addressed some of the concerns of the 1984 Committee and was legislated in the spirit of Macklin’s dissent. It also considered the Committee’s concerns about the potential burden on publishers of political advertisements, as we will also show.

Subsequent Developments

Since the review and repeal of the federal provision in 1984, federal TIPA laws have been mentioned in passing but have come to little. The mood had changed somewhat by the time of the 1990 Federal Election Inquiry when the Joint Standing Committee on Electoral Matters (‘JSCEM’) voiced its concerns about ‘misleading and deceptive publications’ throughout the election campaign and the ‘casual flaunting of the Act with the production of such misleading documents’ (JSCEM, 1990: 42). This was despite the fact that a parallel committee, albeit with a different membership, had repealed and repudiated a possible remedy six years prior. The inquiry recommended that penalties be increased in s 329(1) (the offence previously contained in s 161(1)), which prohibited misleading electors in relation to ‘the casting of their vote’. But, as Evans highlighted, such a provision could only apply to material that misled electors procedurally in the ‘preference-expression’ phase of the election, rather than the ‘preference-formation’ phase.

The issue of TIPA laws was a particular focus of concern in the Inquiry into the Conduct of the 1993 Federal Election. The inquiry received numerous submissions around TIPA provisions, although ‘none provided an argument to convince a majority of the Committee that legislation would be more workable than when [the provision] was repealed in 1984’. The Committee again voiced concerns about undermining the impartiality of the AEC, and echoed the view that ‘[v]oters … remain the most appropriate arbiters of the worth of political claims’ (JSCEM, 1994: 107–109). The Australian Democrats members of the Committee dissented, pointing to the double standard between commercial and political advertising, in which parliament happily regulated the former but displayed consistent hesitancy in regulating the latter. Notably, the dissenters lauded the South Australian provision passed in 1983 as ‘very effective’ and a worthwhile federal model (JSCEM, 1994: 164).

In 1995 the Australian Democrats moved an amendment to the Electoral and Referendum Amendment Bill 1995 to reinstate the offence previously contained in s 161(2), however the bill did not pass the House and lapsed when parliament was dissolved for the 1996 election.

Three years later the JSCEM’s inquiry into the 1996 election encountered support for TIPA laws. Throughout the 1996 election the AEC had received complaints from candidates who assumed that s 329(1) prohibited false or misleading ‘preference-formation’ advertisements, but, once again, in light of Evans, this was a misapprehension.

The Committee also noted that a provision akin to the previous s 161(2) could possibly not be appropriately adapted to the Australian Constitution after the implied freedom of political communication had emerged in 1992. The inquiry considered several ways to curtail false political advertising. The first was regulation akin to that in the Trade Practices Act 1974 (Cth), the second was to emulate South Australia’s regime under s 113 of the Electoral Act 1985 (SA) and the third was to reinstate the short-lived Commonwealth law. To the Committee, the South Australian provision was a superior option to reinstating s 161(2) of the Commonwealth law. The South Australian provision was confined to statements of fact and had recently withstood Constitutional challenge in Cameron. The Committee commented, in passing, that ‘[a] version of the South Australian sanction should be introduced into the Commonwealth Electoral Act’ (JSCEM, 1997: 83) and recommended the establishment of an Electoral Complaints Authority to administer the provision. The Committee envisioned an Electoral Complaints Authority as a neutral agency that could increase in size as the election approached, and would act as a bulwark against the perception that the AEC was politically active. The inquiry eventually recommended that ‘the Electoral Act … be amended to prohibit, during election periods, “misleading statements of fact” in electoral advertisements published by any means’ (JSCEM, 1997: 85). The Government did not support this recommendation in their response, deferring to the reasoning of the 1984 Committee and commenting that legislation ‘would be difficult to enforce and could be open to challenge’ (Australian Government, 1998).

Following the Government’s commitment to not introducing TIPA legislation after the 1996 inquiry, the 1998 election inquiry included a terse and rather dismissive discussion of TIPA laws. It again noted the comparative success of the South Australia regime, but also noted the AEC’s insistence in their submission that ‘any regulation of the ‘truth’ of political debate would be unwise and unworkable’ (JSCEM, 2000: 43). The inquiry into the 2001 election embodied a similar discussion, also concluding that TIPA laws would be ‘unwise and unworkable’, albeit with the Australian Democrats once again dissenting (JSCEM, 2003: 133).

In 2002, the Senate Standing Committee on Finance and Public Administration tabled a report considering several other tabled bills aimed at increased probity in politics. One of the bills, the Electoral Amendment (Political Honesty) Bill 2000 [2002], introduced by Australian Democrat Andrew Murray, attempted to introduce a TIPA provision based on the South Australian model. The Committee accordingly discussed the viability of such a provision in light of the historical federal debate. The report canvassed typical themes in the debate such as the 1983 and 1984 reports, the operation of s 329(1) of the Electoral Act 1918 (Cth) considering Evans, the potential for a model based on the notion of ‘false or misleading’ in the Trade Practices Act 1974 (Cth) and the evolving constraint of the implied freedom of political communication. The report reflected positively upon the operation of the South Australian provision, particularly in light of its affirmed constitutionality in Cameron and conceded that greater control of advertising was necessary for electoral and informational integrity. However, the Committee opted to not recommend passage of the TIPA provision contained in the Bill, citing concerns about endangering the impartiality of the courts and the AEC, and concluding that ‘in its current form it does not present an effective or workable solution to prevent dishonest political advertising’ (Senate Standing Committee on Finance and Public Administration, 2002: 93).

The 2004 federal election inquiry again traversed typical concerns with this type of legislation, particularly concerning appropriate arbitration mechanisms. The inquiry concluded that TIPA legislation akin to South Australia’s would risk violating the implied freedom of political communication and that civil proceedings would be preferable to deal with false campaign statements (JSCEM, , 2005: 83).

Between 2004 and 2019, federal considerations of TIPA were few and far in between. Following the hung parliament at the 2010 federal election, the Australian Greens’ agreement with the ALP stipulated that the parties would work together to ‘create a ‘truth in advertising’ offence in the Commonwealth Electoral Act’, although nothing came of it (Rodgers, 2010). George Williams’ largely overlooked submission to the 2016 federal election inquiry canvassed the state of play around TIPA and was particularly attentive to the South Australian model. While granting that TIPA laws could be both ‘constitutionally valid and enforceable’, Williams did not endorse the passage of such laws and concluded that, if enacted, would likely need to be constructed in narrow terms and would ‘serve little more than symbolic purpose’ (Williams, 2016: 4).

In 2019 the federal election inquiry saw a marked change in direction from the 15 preceding years when the idea of TIPA laws was routinely dismissed. Multiple submissions from private individuals, academics, industry associations, political parties and thinktanks all expressed their concern at the volume of apparently misleading advertisements throughout the 2019 campaign. Professor Colleen Lewis of the Australian National University recommended that the South Australian regime be transplanted federally. This was seconded by the Centre for Public Integrity and the Federal Australian Greens and supported by the then-recently released report on TIPA laws by the Australia Institute . George Williams, sceptical in 2016, had changed tack: ‘I think there are enough extreme cases … to suggest that we do now need something like this’ (JSCEM, 2020: 78). By contrast, media industry associations expressed dismay in their submissions at the potentially onerous burden of scrutinising the ‘truth’ of advertisements (JSCEM, 2020: 78–80).

Notably, there was little agreement in the submissions on an appropriate arbiter for TIPA laws . Luke Beck submitted that, while imperfect, the ACCC would be best positioned to administer TIPA laws . The ACCC responded that this would be a ‘terrible idea’ and that the regulation of political advertising ‘should be done by people who are in that sort of arena’ (JSCEM, 2020: 82). The Australian Greens espoused support for informal ‘fact-checking’ services such as RMIT/ABC Fact Check. Free TV and SBS Australia argued that it was inappropriate that they be expected to determine the veracity of third party advertising, and this sentiment was supported by the News and Media Research Centre of the University of Canberra. The AEC expressed alarm at the prospect of being tasked with scrutinising election advertising, claiming it would ‘lead to accusations of bias’ and ‘lead us … into a dark place’ (JSCEM, 2020: 84). George Williams, in conceding that TIPA laws might be warranted, recommended an independent non-electoral body to oversee the scheme in order to obviate the politicisation of electoral commissions.

Despite many reputable voices recommending TIPA laws in some form or another, the Committee leveraged the relatively trivial disagreements about administration of the provision to wholly reject it. Invoking familiar bromides about the effectiveness of market forces and the collective wisdom of the electorate, the Committee concluded that ‘the best arbiter of truth in election campaigns is an engaged electorate, rather than another well-funded quango’ (JSCEM, 2020: 91).

The ALP’s 2019 campaign review also recommended that TIPA legislation based on the South Australian model be ‘investigated and pursued in the Australian Parliament’ (Emerson & Weatherill, 2019: 64). This general recommendation was carried through to the ALP’s 2021 National Platform in which they claimed they would introduce TIPA laws to enhance the transparency of the electoral process and the integrity of the electoral system (Australian Labor Party, 2021: 71).

Renewed interest in TIPA laws from 2019 was seen both in the volume of submissions to the 2019 election inquiry, as well in the campaign rhetoric of candidates throughout the election. Zali Steggall notably defeated former Prime Minister Tony Abbott in the seat of Warringah campaigning on a ‘honest politics’ platform, a pillar of which was a promise to pursue TIPA legislation. Steggall and Liberal MP Jason Falinski made a joint submission to the 2019 election inquiry in which they reiterated their concerns at the volume of false information disseminated at election time and emphasised the necessity and practicability of TIPA legislation at the federal level (Falinski & Steggall, 2019).

Consistent with her election promise, Steggall has drafted the provision she tabled in the parliament as the Commonwealth Electoral Amendment (Stop the Lies) Bill in October 2021. The laws stipulated in Steggall’s Bill are modelled on the South Australian legislation, drawing on initial research conducted by the authors of this monograph but with the addition of several ‘modernising’ clauses. It expands the scope of the offence to encompass imitations and ‘deep fakes’ which seek to affect the election result via negative, deceptive and often digitally aided impersonations of rival candidates. Unlike the South Australian law, the offence in Steggall’s proposed law has a lower threshold. It punishes statements which are misleading or deceptive, rather than those which are misleading and deceptive. Steggall’s Bill also encompasses statements of fact which are likely to be misleading or deceptive. The proposed law allows the courts to hear complaints brought by actors other than the Electoral Commissioner, although these can be promptly dismissed if they are found to be frivolous, unreasonable or ‘an abuse of the process of the Court’. Similar to the South Australian provision, the Electoral Commissioner is empowered to request cessation of publication of the matter and to ask for a retraction or correction in specified terms, however the Electoral Commissioner is vested with the additional power to publish a correction. At the time of writing (December 2021) the bill is before the House of Representatives.

Historically, the TIPA debate has not been restricted to the Commonwealth. States and territories have often contemplated, and sometimes even passed, TIPA laws. While unsuccessful, Queensland and Victoria’s inquiries into TIPA laws have contributed significantly to the broader discussion. Addressing and understanding the respective inquiries’ concerns, such as we aim to do here, is of vital importance in devising a more operable, effective and constitutional TIPA regime.

Queensland

Until the ACT’s rapid and relatively undeliberated passage of TIPA laws, Queensland was the jurisdiction that came closest to passing its own provision, having recommended a near ‘transplant’ of the South Australian provision into its electoral machinery in 1996. A striking feature of the Queensland debates is their bipartisanship; TIPA laws have been considered and often supported, at one time or another, by both major parties.

Pre-1996 Developments

In 1991, the reports of Queensland’s Electoral and Administrative Review Commission on the Elections Act 1983 (Qld) from 1983 to 1991 laid the foundation for Queensland’s electoral overhaul as embodied in the Electoral Act 1992 (Qld). Regarding TIPA, the first report considered legislative controls on political advertising and recommended that controls be established to prevent misleading or false advertising affecting parties and candidates (Queensland Electoral and Administrative Review Commission, 1991).

This recommendation was disregarded in the initial drafting of the Electoral Act 1992 (Qld). Section 163(1) (now s 185(1)) contained an offence relating to misleading voters; the language used related to matters intended to ‘mislead an elector in relation to the way of voting at the election’ and would obviously be interpreted in light of Evans. Section 163(2) (now s 185(2)) contained an offence akin to the UK provision which prohibited ‘knowingly publish[ing] a false statement of fact regarding the personal character or conduct of the candidate’. Section 163(2) has not been litigated since its passage in 1992.

In 1995 the Deputy Leader of the Liberal Party, Denver Beanland, tabled the Electoral Amendment Bill 1995 (Qld) which sought to add an offence modelled on the 1983 Commonwealth provision prior to its repeal. The main difference was that the offence punished statements that were untrue or misleading or deceptive, a lower threshold than the 1983 provision which required that both elements be present. The bill applied a higher penalty than the Commonwealth, was uniform between individuals and body corporates, and provided no statutory defence, with only the common law defence of reasonable and honest mistake of fact being available. The bill lapsed upon the prorogation of parliament in 1996 (see Legal, Constitutional and Administrative Review Committee, 1996: 17–18).

The 1996 Report

The most serious consideration of the matter came in the Queensland Legal, Constitutional and Administrative Review Committee’s (‘LCARC’) report into TIPA in 1996. After the Cameron decision affirmed the constitutionality of the South Australian provision in 1995, the 1996 Queensland report gave serious consideration to a ‘transplant’ of the South Australian law into Queensland’s electoral act (LCARC, 1996).

The Committee saw TIPA legislation as both workable and desirable, arguing that candidates and parties ‘should not be able to make untrue or misleading statements about matters of fact in order to falsely justify or bolster their opinions or predictions’; further, legislators cannot ‘shirk their responsibility’ by claiming the issue is ‘too hard to administer’ (LCARC, 1996: 28). In considering the parallel laws governing advertising in the then-Trade Practices Act 1974 (Cth), the Committee posed the question: ‘Parliament demands that the commercial community not mislead consumers. How then can Parliament not demand that candidates seeking election to Parliament not mislead electors?’ (LCARC, 1996: 28). Their sole recommendation on TIPA laws read: ‘The Committee recommends that [TIPA] legislation be introduced in Queensland’ (LCARC, 1996: 29).

The Committee then deliberated on more peripheral TIPA concerns. At the time of its publication the implied right of political communication had been found, but no applicable test had been developed in the case law. The Committee considered George Williams submission that TIPA laws ‘should only impede free speech to the minimum amount necessary to meet a competing public policy interest’ (LCARC, 1996: 29) as a possible test to guide the development of the provision. With this in mind, the Committee proposed that their model, like the South Australian provision per Cameron, would be a ‘reasonable, proportionate interference with the right of free speech and thus acceptable in terms of the recent decisions of the High Court’ (LCARC, 1996: 29).

The Committee was then tasked with articulating the form their TIPA provision was to take. The four options considered were along the lines of previous experiments: the former s 161(2) of the Electoral Act 1918 (Cth); s 113 of the Electoral Act 1985 (SA); s 52 of the Trade Practices Act 1974 (Cth); and Denver Beanland’s previously tabled 1995 bill in Queensland. The South Australian provision was chosen as the most suitable due to its constitutional validity and ‘more objectively ascertainable standard’ (LCARC, 1996: 30) as it did not boldly attempt to prohibit statements that were purportedly ‘untrue’, but only targeted statements that were inaccurate and misleading to a ‘material extent’.

On penalties, the Committee recommended pecuniary penalties, with bodies corporate paying five times more than natural persons. Other remedies, such as injunctions, declarations of falsity and ‘fresh elections’ were also recommended to be applied at the court’s discretion. On defences, the committee recommended the South Australian statutory defence and acknowledged that the common law defence of honest and reasonable mistake of fact would be available and desirable.

Finally, on the ever-contentious matter of the appropriate adjudicator, the Committee opted for the courts. Citing the Queensland Electoral Commission’s hesitancy in their submission, the cost of an independent tribunal and the obvious unsuitability of industry self-regulation; the Committee saw the courts as the least inappropriate authority.

The proposed provision would therefore look almost identical to the South Australian provision in most respects. While both the South Australian and the proposed Queensland provision would contain pecuniary penalties in which a body corporate would pay five times more than a natural person, these penalties would differ in absolute value as Queensland’s would be expressed in penalty units. As the South Australian Electoral Commissioner was only given power to request a retraction after the Electoral Act 1985 (SA) was amended in 1997, the proposed model of arbitration suggested by the Queensland Committee in 1996 would have been exactly the same as South Australia’s at the time, with the courts having original jurisdiction over electoral complaints.

Upon receiving the Committee’s report and subsequent endorsement of TIPA laws, Premier Robert Borbidge anticipated that the regime would ‘improve political discourse in Queensland’ (Queensland Government, 1998). Attorney-General Denver Beanland, who had initially tabled the 1995 bill, saw the recommendations as uncontroversial and envisaged bipartisan support (although in a later letter he warned of enforcement difficulties and the apparent risk of polarisation). Despite early enthusiasm and declarations of support from the National Party and Australian Democrats, the laws were never tabled or voted on.

Post-1996 Developments

Concomitant with the resurgence in interest in TIPA legislation around Australia, Queensland has begun to reconsider the possibility of TIPA laws. For example, in 2013 the Attorney-General’s Department released its ‘Electoral Reform Discussion Paper’ in which it addressed the TIPA issue. In canvassing international, federal and state regimes (in particular South Australia’s), the report distilled two fundamental questions for consultation in Queensland: should such laws be passed? And should such laws extend beyond advertisements to other inaccurate or misleading election statements? These questions were not addressed by the Newman Government in their term but prompted a response from Queensland Labor under then-opposition leader Anastasia Palaszczuk. Labor responded that the political impact of false statements is ‘incontestable’ and that they were therefore ‘supporting of legislation … along similar lines to the successful model used in South Australia’ (Queensland Labor, 2013: 13). Incumbent since 2015, the Palaszczuk government is yet to pass the laws they so enthusiastically supported when in opposition.

In June 2021, Labor rank-and-file members attending the Queensland Labor Conference urged the Queensland government to investigate laws regulating dishonest or inaccurate political advertising as a response to events like the ‘death taxes’ campaign promulgated by the Liberal Party at the 2019 Federal Election. Queensland Labor Attorney-General Shannon Fentiman agreed that the ‘integrity of our electoral system is so important’ and that ‘[e]nsuring voters are informed when they go to the polling booth needs a national approach across all jurisdictions and elections’. However, she did not commit to pursuing the matter further. In December 2020 a spokesperson for the government reported that Labor had no plans to introduce any such new laws. Fiona Simpson, the LNP’s spokesperson for integrity in government, said that the Opposition was keen for elections to be free of false campaign statements: ‘Voters should be presented with the facts to make an informed decision when they cast their vote’ (Caldwell, 2021).

Victoria

There are two Parliamentary Committee reports by the Electoral Matters Committee (‘EMC’) that are of interest in the Victorian TIPA debate: the 2010 ‘Inquiry into the Provisions of the Electoral Act 2002 (Vic) Relating to Misleading or Deceptive Political Advertising’ and the 2021 ‘Inquiry Into the Impact of Social Media on Elections and Electoral Administration’.

The 2010 Report

The 2010 report was commissioned following a complaint about a pamphlet authorised by the ALP during the 2008 Kororoit by-election. The advertisement targeted an opposing independent candidate, Les Twentyman, and claimed that: ‘A vote for Les Twentyman is a vote for the Liberals’ (EMC, 2010: 1). Les Twentyman’s campaign lodged the complaint, asserting that the pamphlet was misleading and/or deceptive and therefore contravened section 84(1) of the Electoral Act 2002 (Vic) (which we identify above as only a ‘pseudo’ TIPA provision). While accepting that it was misleading, the Victorian Electoral Commission (‘VEC’) deemed the claim insufficient to breach the provision which stipulated that:

• (2) A person must not during the relevant period—

• (a) print, publish or distribute; or

• (b) cause, permit or authorise to be printed, published or distributed

any matter or thing that is likely to mislead or deceive an elector in relation to the casting of the vote of the elector.

As would be expected, this was interpreted by the Commission under the precedent established in Evans. As the advertisement did not mislead with respect to the physical casting of the vote, it did not violate the provision. Given this interpretation and its seemingly tacit endorsement of false campaign statements that did not advert to the physical casting of a vote, the Committee sought to inquire into the future operability of existing provisions, and the proper direction for future provisions relating to false and misleading political advertising in Victoria. The inquiry was recommended by the Victorian Electoral Commissioner upon receipt of the complaint, based on his view that misleading statements had contributed to ‘an undesirable trend for candidates to take advantage or build on community misunderstandings of preferential voting with confusing statements’ (EMC, 2010: 1).

As with other cognate inquiries, the report canvassed TIPA laws in Australia and elsewhere, and paid special attention to the South Australian provision. Unlike the Queensland inquiry in 1996, the Victorian inquiry generally disapproved of the South Australian provision. The Committee’s attitude was based upon submissions and comments made by Steve Tully, who had served as South Australian Electoral Commissioner between 1997 and 2005 but was then-incumbent as Victorian Electoral Commissioner. Tully commented that, due to s 113 in South Australia, ‘[e]verybody wanted to complain about everything’ (EMC, 2010: 53) and that the provision had proven an onerous burden during his tenure. Implying that s 113’s complaints process had been co-opted by the political class as merely another campaign tool Tully answered in the affirmative to Robin Scott’s question: ‘Could it be that where there is a system of complaint that is available, that process itself becomes part of the political process?’ (EMC, 2010: 54).

Professor Brian Costar, then coordinator of the Democratic Audit of Australia, provided a two-pronged criticism of the South Australian law which was cited in the report. Costar’s first criticism was that South Australia’s law ‘involved the [E]lectoral [C]ommissioner making judgements about election material’ and therefore purportedly impugned the impartiality of the office. Costar’s second criticism centred on what he regarded as the legally blurry distinction between fact and opinion that any successful TIPA regime would have to navigate (EMC, 2010: 54).

The Committee also cited Kay Mousley, then-South Australian Electoral Commissioner, who had commented in 2009 that she was ‘of the strong opinion that if the onerous burden of determining whether electoral material was misleading to a material extent was removed from legislation, the office would be in a better position to monitor the content of electoral material’ (Electoral Commission of South Australia, 2009: 22). The comment highlighted difficulties in the determination of ‘material extent’ as it relates to s 113 of the Electoral Act 1985 (SA), which we discuss later in Chapter 9.

The Committee noted that although ‘members of parliament have a duty and responsibility as elected representatives to uphold values of honesty and integrity’, they feared that ‘expanded measures to regulate misleading or deceptive political advertising would have implementation difficulties and increase the risk of a more litigious approach to elections’ (EMC, 2010: 157–158). The Committee concluded that regulating political advertising would be ‘potentially unworkable and could have unintended consequences’. It ended the matter by invoking a familiar, ingenuous trope: ‘the highest authority to test [TIPA] is the electors’ (EMC, 2010: 159). As of 2021, the contemplated section of the Electoral Act 2002 (Vic) has not been changed.

The 2021 Report

In September 2021 the Victorian Electoral Matters Committee released its ‘Inquiry Into the Impact of Social Media on Victorian Elections and Victoria’s Electoral Administration’. The ambitious 300-page report tackled many pressing facets of electoral administration and considered TIPA laws as a possible remedy to slow the spread of inaccurate information. The inquiry again considered the South Australian model as the archetypical TIPA provision and then sought to discuss its efficacy as well as possible improvements for an ideal regime.

The inquiry received a submission from Associate Professor Luke Beck, which posited several changes to the South Australian model as the basis for a Victorian model. Beck suggested bringing political advertising regulation in line with commercial advertising regulation, and the use of the words ‘misleading or deceptive’ in the offence to harmonise the understanding of the provision with existing consumer law (JSCEM, 2020). To this end, Beck also recommended that civil rather than criminal penalties apply, a sentiment with which we strongly disagree (see below). The Committee rightly observed that TIPA provisions are, and ought to be, quite limited in their scope, but saw them as a powerful tool in combatting authorised false statements of fact.

Based on submissions received, the Inquiry was ambivalent about the efficacy of the South Australian regime and, in turn, the suitability of a similar regime for Victoria. In some submissions, the South Australian model was hailed as a powerful catalyst for change in political culture and a vehicle for protecting truthful democratic discourse but was heavily criticised by the VEC . The VEC told the Committee that s 113 in South Australia had ‘proved problematic in many respects’ (VEC, 2020: 13). They cited concerns such as vexatious litigation, enforcement difficulties and the administrative and legal burden of demonstrating ‘material extent’. But its dominating concern was being designated as the ‘arbiter’ of political ‘truth’: ‘The VEC is not an authority on the myriad of issues that arise in an election, and it would be an overreach for the VEC to purport to determine the truth in such issues’ (VEC, 2020: 14). On the other hand, Mick Sherry, current South Australian Electoral Commissioner, reassured the Committee that ‘in a broad sense the legislation does prevent misleading advertising heavily influencing elections here in South Australia’ (EMC, 2021: 2).

The Committee reflected on its previous conclusion that TIPA laws were inappropriate for Victoria, and in doing so, acknowledged that the media and electoral landscapes had changed significantly in the ten intervening years. The remedies suggested in the 2010 report were primarily focused on transparency requirements for advertisers, but the 2021 report commented that ‘a lot has changed since 2010 in terms of electoral advertising and … transparency is not enough’. The Inquiry saw that traditional media institutions which had previously been tasked with safeguarding electoral truth were ‘no longer as well resourced’ and had ‘less capacity to interrogate claims made at election time’ (EMC, 2021: 120).

Much like George Williams’ change of heart between 2016 and 2019, the Victorian inquiry conceded that the changing media landscape meant that ‘legislation specifically targeting purported statements of fact in electoral advertising can play a helpful role as one part of a strategy to maintain and strengthen Victorian democracy’ (EMC, 2021: 120). The Government’s response is expected to be tabled some time in 2022.

Australian Capital Territory

Aside from South Australia, the Australian Capital Territory is the only other Australian setting with robust TIPA legislation. The law was passed unanimously in September 2020 as s 297A of the Electoral Act 1992 (ACT) and came into force on 1 July 2021. Caroline Le Couteur MLA moved the amendment and explicitly based it on the South Australian provision. The offence and defence are found in sub-sections 1 and 2, respectively. The offence reads:

• (1) A person commits an offence if—

  • (a) the person disseminates, or authorises the dissemination of, an advertisement containing electoral matters and

  • (b) the advertisement contains a statement purporting to be a statement of fact that is inaccurate and misleading to a material extent

Maximum penalty: 50 penalty units.

• (2) It is a defence to a prosecution for an offence against subsection (1) if it is proved by the defendant that the defendant—

  • (a) took no part in deciding the content of the advertisement and

  • (b) could not reasonably be expected to have known that the statement was inaccurate and misleading.

Substantively, the legislation is almost identical to the South Australian provision, however there are two critical ways in which it is different and, arguably, better. First, the maximum penalty that can be applied to a person is AUD8000 which is AUD3000 more than in South Australia. For bodies corporate, the maximum penalty in the ACT is AUD40,500 as opposed to AUD25,000 in South Australia. In terms of efficacy, the larger penalty is probably justified as sufficient to deter political parties because it is less easily absorbed as a campaign expense for the purposes of gaining an advantage.

The second difference—and possible advantage—of sub-s (1)(a) of the ACT legislation is that it is not intended to apply to publishers. Caroline Le Couteur MLA made a supplementary explanatory statement that the ‘amendment only applies to electoral material of a kind that is already required to be authorised … the offence is intended to apply only to people or political entities who post an advertisement, not the publisher’ (ACT Legislative Assembly, 2020: 3). Although this supplementary statement has not been formally endorsed by the Assembly, it clarifies the intention of Ms. Le Couteur in moving this legislative provision, namely, that only the author, not the publisher, should be subject to prosecution. This sentiment is consistent with our own view that it is inappropriate and imprudent, given the constraints imposed by the implied freedom of political communication, to penalise publishers of inaccurate and misleading political advertisements.

However, there is still some ambiguity around the wording of the legislation because it does not reflect the meaning of the explanatory statement made by Ms Le Couteur. The ACT legislation targets a person who disseminates or authorises the dissemination of electoral material. ‘Disseminate’, as defined in the act, includes the printing, publishing, distribution and production of electoral matters (Electoral Act 1992 (ACT) Dictionary: 305). Therefore, there is nothing in the wording of s 297A(1) that precludes the potential liability of publishers.

Both prior to and since the passage of the provision, the ACT Electoral Commission (Elections ACT) has voiced its concerns about being designated the arbiter and regulator of s 297A. With apparent prescience, the Commission made a submission to the 2016 ACT Election Inquiry recommending ‘against the introduction of legislation in the ACT aimed at regulating truth in political advertising’ (Elections ACT 2017: 2). The Commission opined that while ‘truth should be at the heart of an election campaign’, the administrative burden would be too great should it be made responsible and suggested that another independent body should administer the provision (Elections ACT, 2017: 8). The submission cited cynical injunctions, vexatious litigations, lack of legislative scope and current protections such as advertisement authorisations, as sufficient reasons to reject TIPA laws (Elections ACT, 2017: 8–11).

Despite the provision not being functional (although it had been passed) at the ACT election held between September and October 2020, TIPA was a prominent theme in the Inquiry into the 2020 ACT Election and the Electoral Act. Submissions were received both in support of and in opposition to the still dormant provision, with Elections ACT again recommending the empowerment of an independent body to determine the veracity of claims. Despite Elections ACT’s request that their power of determination be transferred, they also rather unhelpfully observed that truth determinations are ‘the individuals’ responsibilities, as individual electors and voters’ (Elections ACT: 51). In light of the Elections ACT submission, the Committee requested that the commencement of the provision be delayed. Its request was denied. Section 297A similarly featured as a prominent topic in Elections ACT’s 2020 election report, with the Commission again recommending that power be transferred to an independent body such as an ‘Electoral Complaints Authority’ (Elections ACT, 2021: 54–55). Despite its evident reluctance, at the time of writing (December 2021) Elections ACT remains the statutory arbiter of s 297(a).