Introductory Comments

We now explore in detail how s 113 in South Australia has operated and the extent to which it has been successful in managing the problem of false election information. We pay particular attention to its constitutionality with respect to a series of test cases, thereby also providing a partial history of how the implied freedom of communication under the Australian Constitution has evolved. We then propose means by which s 113 could be enhanced to future-proof it against constitutional challenge.

Section 113 of the Electoral Act 1985 (SA) states that:

A person who authorises, causes or permits the publication of an electoral advertisement (an advertiser) 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.

Maximum penalty:

  1. (a)

    if the offender is a natural person—$5000;

  2. (b)

    if the offender is a body corporate—$25,000.

This provision applies to an ‘electoral advertisement’ defined in the Act as an advertisement containing electoral matter, meaning matter ‘calculated to affect the result of the election’ (Electoral Act 1985 (SA) s 4). An electoral advertisement can be published by any means, but must not be distributed unless the name and address of the author of the advertisement, or the person who authorised its publication, appears at the end (Electoral Act 1985 (SA) s 112(1)). This definition enables s 113 to apply to a wide range of advertising mediums such as television, radio, corflute board and social media posts without applying to political communications in the form of informal discussion and debate.

Where a person or body corporate publishes a purported statement of fact that is inaccurate and misleading to a material extent, an elector can submit a complaint to the Electoral Commission of South Australia (‘ECSA’). Under s 113(4), the Electoral Commissioner is empowered to act on these complaints (since s 113 was amended in 1997) by requesting the advertiser to do one or more of the following:

  1. (a)

    withdraw the advertisement from further publication;

  2. (b)

    publish a retraction in specified terms and a specified manner and form.

Requests for withdrawals of misleading political advertising made by the Electoral Commissioner are generally respected (Browne, 2019: 7). However, if a request is not acted upon by the advertiser, the Electoral Commissioner can make an application for enforcement in the Court of Disputed Returns which sits within the Supreme Court of South Australia. If the Court is satisfied beyond reasonable doubt that the advertisement is inaccurate and misleading to a material extent, the Court, under s 5, may order the advertiser to withdraw the advertisement from further publication and/or publish a retraction in the terms, manner and form specified by the Commissioner.

Section 113 in Historical Context

South Australian electoral law was overhauled by the passage of the Electoral Act 1985 (SA) and associated repeal of the Electoral Act 1929 (SA). Greg Crafter, then member for Norwood, clarified the motivation and inspiration for the overhaul in the Bill’s second reading speech in May 1985. In it, he lambasted the existing electoral infrastructure of South Australia, describing it as an ‘unsatisfactory pastiche of measures that lie scattered throughout Statute books and other sources’. Modern innovations in the 1929 Act were clouded by the ‘vestigial remains of long forgotten practices’; a view shared by others. The Electoral Commissioner was quoted in the speech as observing that ‘the present system is extremely fragile and not well equipped to cope with late twentieth century pressures’ (South Australian House of Assembly, 1985: 4252). By the time of passage of the 1985 Act, the 1929 Act had been amended 22 separate times and appeared to many to be no longer fit for purpose. It was from this overhaul that section 113 emerged.

Pursuant to the criticism, the overhaul was intended to ‘affect a number of long overdue reforms’. The Bill further ‘[sought] to be simple and straightforward—simple to read and understand, simple to administer and simple to comply with’. The Government’s self-proclaimed motivation for the overhaul was to put ‘the future of the State exactly where it should be—in the hands of the people’ (South Australian House of Assembly, 1985: 4252). The Government cited several sources calling for large scale revision including the report of the Electoral Commissioner on the conduct of the 1982 election and the electoral law policy platform of the ALP at the 1982 election. It also adverted positively to revisions to the Electoral Act 1918 (Cth) following the reforms of the JSCER in 1983 and 1984—including revisions which affected political advertising.

The addition of the modern section 113 in 1985 would have been primarily motivated by the recent changes to the Electoral Act 1918 (Cth) as well as the then-recent case of Evans. As we have outlined previously, the Commonwealth Parliament passed a short-lived and poorly drafted TIPA law in 1983, and hastily repealed it in 1984. In addition to this, existing statutory protections about misleading voters had been blunted by Evans to be confined to the mechanical act of ‘casting one’s vote’. The defunct Commonwealth TIPA law (Electoral Act 1918 (Cth) s 161(2)) had existed in addition to the law that prohibited misleading voters in relation to the casting of their vote (Electoral Act 1918 (Cth) s 161(1))—suggesting that the Parliament saw preference formation and expression as distinct, and that two distinct provisions were required to regulate them. South Australia followed this line of reasoning in devising the Electoral Act 1985 (SA) and created two distinct offences targeted at protecting the integrity of processes around both preference expression and preference formation.

The South Australian legislature was clearly cognisant of the Evans decision in devising the modern section 113. Section 113 was and remains concerned with misleading advertising (material that impacts preference formation), whereas section 126 of the same Act prohibits ‘advocacy of forms of voting inconsistent with [the] Act’ (material which affects preference expression). Prior to Evans, some legislators may have assumed that provisions prohibiting misleading electors in relation to the ‘casting of their vote’ were sufficiently broad to cover statements relating to both preference formation and preference expression whereas, as we have explained, the judgement in Evans meant that it only covered the latter. The splitting of South Australia’s erstwhile pseudo-TIPA provision in the 1929 Act into the two distinct provisions in the 1985 Act (s 113 and s 126) suggests that the South Australian legislature wanted to avoid the narrow interpretation later found in Evans and to effectively encompass the all-important preference formation stage neglected under ‘pseudo’ provisions. Otherwise, any ‘pseudo’ TIPA law limited to the ‘casting of one’s vote’ would be immediately interpreted as solely relating to the mechanical act of voting.

This arrangement is congruent with the short-lived Commonwealth provision in which false statements affecting expression were covered by s 161(1), and false statements affecting formation by s 161(2). The ‘tightening’ of the South Australian law therefore appears to be inspired by a rejection of the Evans interpretation and a careful study of the Commonwealth experience with TIPA throughout 1983/1984.

From a close reading of s 113, it is evident that it was designed to ameliorate concerns that emerged in the 1984 JSCER second report and which motivated the repeal of the Commonwealth provision. Section 113 is constructed in the spirit of the Commonwealth provision but makes notable and prudent changes. For example, s 113:

  • Does not purport to capture ‘untrue’ statements, but rather those that are ‘inaccurate and misleading’

  • Is designed to capture ‘advertisements’ rather than all statements (which the Commonwealth provision seems to have sought to achieve)

  • Captures only advertisements that are purported statements of fact, rather than those of comment or opinion

  • And is qualified by the condition that the false information affected an election result to a ‘material extent’ in order to discourage trivial and vexatious litigation.

Each of the differences between s 113 of the Electoral Act 1985 (SA) and the previous s 161(2) of the Electoral Act 1918 (Cth) represents a response to criticisms of the latter made in the second JSCER Report in 1984 which resulted in the repeal of Australia’s short-lived federal TIPA provision.

As a democratic innovation, South Australia’s s 113 therefore seems to have emerged from the ashes of a much maligned and transient Commonwealth provision. Questions of s 113’s constitutionality were not relevant during its original passage as the implied freedom of political communication would not be established until 1992. However, since 1992 such questions have been posed and litigated and they continue to shadow its operation. This is a major issue as proposals for TIPA-type provisions are routinely taken off the table due to the mistaken belief that they are incapable of passing constitutional muster.

Constitutionality of s 113

Section 113 of the Electoral Act 1985 (SA) has survived constitutional challenge based on the implied freedom of political communication in the Australian Constitution. In 1995 the Supreme Court of South Australia unanimously held in Cameron that s 113 is constitutional. That case concerned an electoral advertisement aired on Channel 10 which contained the following statement: ‘The fact is the Brown Liberals have stated that any school with less than three hundred students will be subject to closure. We have 363 schools with less than 300 students’ (Cameron: 240). The advertisement paraphrased a statement made in a radio interview by Mr Lucas, a spokesman for the Liberal Party, who said:

[W]e’ve indicated here in South Australia that we’re certainly not going to be closing two hundred schools in South Australia. If there are a small number of schools that have got very small numbers of students, well then under both Governments I guess there will continue to be a small program of school closures, but we’re not going to be looking at schools with three hundred students in them. (Cameron: 240)

Among other grounds, the defendant submitted that the offence created by s 113 breached the implied freedom of political communication in the Australian Constitution. Justice Olsson, with Bollen J concurring, found that the s 113 offence was constitutional. The Court held that the limitation imposed by s 113 of the Electoral Act 1985 (SA) on the implied freedom of political communication strikes the appropriate balance and is ‘manifestly proportionate to the legitimate object of ensuring that what is represented as factual material published in electoral advertisements is accurate and not misleading’ (Cameron: 248 (Ollson J)). Lander J reasoned that, while the provision ‘does interfere with the right of freedom of speech, it does so for the purpose of protecting the electors from being misled and deceived. The Act, I think, attempts to balance the concept of freedom of speech and the right to be properly informed’ (Cameron: 248). The Court evidently regarded well-designed TIPA legislation as compatible with the maintenance of the constitutionally prescribed system of representative government in Australia.

Nevertheless, there is still a lack of clarity in Cameron regarding the appropriate way to assess the compatibility of s 113 with the Constitution, per Lander J: ‘Different members of the High Court have suggested tests to determine the validity of a provision that does interfere, by regulation, with the freedom of political discourse’ (Cameron: 256). Despite this, Lander J affirmed s 113’s constitutionality on all the then-possible tests: ‘I think on any of the tests proposed, that this legislation would be valid. The legislation … goes no further than is necessary to protect the legitimate interest for which it is designed’ (Cameron: 257).

While it has already been established that s 113 of the Electoral Act 1985 (SA) has a legitimate object in ensuring that electors make a free and informed choice when voting, we would suggest that s 113, in its current form, is not as appropriate and adapted as it ideally could be because it places a burden on publishers. In s 113, ‘[a] person who authorises, causes or permits the publication of an electoral advertisement (an ‘advertiser’)’ is potentially liable (Electoral Act 1985 (SA) s 113(2)). This formulation creates the possibility of overlapping liability directed, on the one hand, at the political party authorising the advertisement and, on the other, at the media organisation that publishes the advertisement (Williams, 2016). If the liability on publishers has the effect of discouraging political advertising in general, then s 113 may not be appropriate and adapted to serving a legitimate object.

As Cameron was decided in 1995, there was no broadly accepted test to apply to determine its compatibility with the implied freedom and therefore its constitutionality. Few cases concerned with the then-fledgling implied freedom had been decided by 1995,1 all of which suggested that the right was not absolute and could be reasonably curtailed for motives such as the ‘preservation or maintenance of an ordered society under a system of representative democracy and government’ (Cunliffe v Commonwealth (1994) 182 CLR 272, 300 (Mason CJ)).

The High Court in Lange v Australian Broadcasting Corporation (‘Lange’) reaffirmed the implied freedom of political communication as an indispensable incident of representative and responsible government prescribed by the Constitution ((1997) 189 CLR 520, 559). That case developed the ‘reasonably appropriate and adapted’ test for determining whether a law infringes the implied freedom. Subsequently, the test advanced in Lange was reformulated in Coleman v Power. Structured proportionality was included in the test following the judgement of McCloy v New South Wales (‘McCloy’) and revised again in Brown v Tasmania ((2017) 261 CLR 328) to the current test which was confirmed in Clubb v Edwards ((2019) 267 CLR 171, 186 (Kiefel CJ, Bell and Keane JJ) as:

  1. 1.

    Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?

  2. 2.

    If ‘yes’ to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

  3. 3.

    If ‘yes’ to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

The test expressed above demonstrates that the relevant factors for considering the constitutional validity of a law with respect to the implied freedom are: the burden it places on political communication; whether the law has a legitimate purpose; and, whether the measures necessary to fulfil that purpose are proportionate to the burden they impose. While Cameron affirmed s 113’s compatibility with the Constitution in 1995, it is prudent to apply the modified test in Brown to evaluate the provision’s compatibility with the implied freedom as it is currently understood by the High Court.


The first question is whether the ‘law effectively burden[s] the freedom in its terms, operation or effect’ (McCloy: 194 (French CJ, Kiefel, Bell and Keane JJ)). This asks nothing more than whether the law puts ‘some limitation on, the making or the content of political communications’ (Monis v The Queen (2013) 249 CLR 92, 142 (Hayne J)). Section 113 by its terms prohibits misleading and inaccurate political communications and operates to penalise persons who make them. In the case of Cameron, Lander J conceded that although s 113 ‘is directed to a very small class of persons in very narrow circumstances’, it is ‘a law that does interfere with the freedom of discourse in political matters’ (Cameron: 254). There is no doubt that the provision burdens the implied freedom, but its effect appears to be modest because it applies to a very limited subset of political communications.


The second question is whether the purpose of the law is legitimate in the sense that it is compatible with the maintenance of representative government (McCloy: 179). The purpose of s 113 is to protect the fundamental right in a representative democracy of electors to be well informed and not misled or deceived when deciding the direction of their vote. This purpose is of paramount importance to the maintenance of representative government. In Smith v Oldham (‘Smith’), it was stated that ‘[t]he vote of every elector is a matter of concern to the whole Commonwealth … the voter shall not be led by misrepresentation or concealment of any material circumstance into forming and consequently registering a political judgment’ ((1912) 15 CLR 355, 362 (Isaacs J)). Further, Isaacs J affirmed that ‘Parliament can forbid and guard against fraudulent misrepresentation’ (Smith: 362). More recently, Keane J affirmed that the ‘protection of the integrity of the electoral process from secret or undue influence is a legitimate end the pursuit of which is compatible with the freedom of political communication’ (Unions NSW v New South Wales (‘Unions’) (2013) 252 CLR 530, 579). Consequently, there is no doubt that s 113 has a legitimate purpose.


The final consideration is whether s 113 is reasonably appropriate and adapted to advance its legitimate purpose. This involves a proportionality test to determine if the restriction that the law imposes on the freedom of political communication is justified (McCloy (2015) 257 CLR 178 at 179). There are three inquiries to be made: whether the law is (a) suitable; (b) necessary; and (c) adequate in its balance. Despite some dissent, following McCloy, a majority of the High Court has consistently reaffirmed that structured proportionality is the accepted approach2 and it will be applied to s 113 in the analysis below.

A law is suitable if there is a rational connection between the purpose of the law and measures adopted to achieve that purpose in the sense that the means for which it provides are capable of realising that purpose (Comcare v Banerji (2019) 267 CLR 373). The purpose of s 113 is realised by providing the power to withdraw, retract and order penalties for misleading electoral advertising. These measures have the direct effect of disincentivising and removing information that has the potential to mislead electors.

The law must be necessary in that there is no obvious and compelling alternative or reasonably practicable means of achieving the same purpose with a less restrictive effect on the implied freedom. It could be argued that the Electoral Act 1985 (SA) has an unnecessarily broad definition of ‘electoral matter’. Misleading electoral advertising is likely to be most harmful in the weeks prior to an election, therefore the operation of s 113 could be confined to the election period. The problem with this option is that it would detract from the broad purpose of the legislation—to ensure that electors are as well informed as possible throughout the entirety of the election cycle. After all, preference formation happens over a prolonged period of time. A more compelling alternative would be to remove the burden on second-hand publishers of electoral advertisements. Publishers who do not determine the content of the advertisement should not be subject to a pecuniary penalty. Doing so would likely have the effect of discouraging political advertising because of the perceived risk and vetting costs (Renwick & Palese, 2019). The person or body corporate who formulated and authorised the creation of the advertisement would remain liable. This alternative would be capable of achieving the same purpose if s 113 were amended to remove only the pecuniary penalty on second-hand publishers. This would still empower the Court to order the withdrawal of the advertisement (where possible) and a public retraction to be made.

There is a risk that the law could be invalidated on the third step (adequate balance) because s 113 seems to place a greater burden on political communication than previously asserted in Cameron. Section 113 is directed at a person who ‘permits the publication of an electoral advertisement’ (Electoral Act 1985 (SA) s 113(2)) (emphasis added) which means that both the candidate and/or political party authorising the advertisement and the media organisation that publishes it could be liable. If publishers bear the burden of determining whether an electoral advertisement breaches s 113 then, by potentially discouraging the publication of political advertising it could have a chilling effect on political communication and be invalidated (Williams, 2016). In other words, s 113 still has the potential to infringe the implied freedom of political communication because the preservation of representative government requires regular and candid media coverage. Consequently, there is a risk that s 113, in its current form, is incompatible with the constitutionally prescribed system of representative government.

Therefore, any ideal-type regime should minimise the liability of publishers to avoid chilling the free flow of information and ideas necessary to inform voters. As George Williams puts it, under ‘[TIPA] provisions, liability should be limited to the person or organization putting forward the point of view’ (Williams 2016: 4).


  1. 1.

    See Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 and Cunliffe and Another v Commonwealth (1994) 182 CLR 272.

  2. 2.

    See for example: Brown v Tasmania (2017) 261 CLR 328 at 368–370, Clubb v Edwards (2019) 267 CLR 171; Comcare v Banerji (2016) 267 CLR 373; LibertyWorks Inc v Commonwealth of Australia (2021) 95 ALJR 490; Monis v The Queen (2013) 249 CLR 92; Unions NSW v New South Wales (2019) 264 CLR 595.