Laws banning false political advertising in the ACT, sparked by campaigns such as the ‘Death Tax’ and ‘Mediscare’, passed in the Legislative Assembly yesterday, but they will not be in place in time for the upcoming territory election.
In a rare show of collegiality yesterday, the ACT’s politicians unanimously voted in favour of introducing laws that would make it harder for them to lie to the public.
From July 2021, an individual could be fined up to $8,000 and a corporation up to $40,500, for false political advertising.
But the new laws will not be in place in time for the territory election, now just seven weeks away.
Under the new legislation, people will also be able to complain about political material to the ACT Electoral Commission, which will have powers to investigate and ask for the removal of the advertisement.
Two advertising campaigns run by the major parties in recent federal elections — now known as the ‘Death Tax’ and ‘Mediscare’ campaigns — were responsible for the prominence of this issue in the ACT.
In each of those campaigns, the federal Coalition and federal Labor parties ran ads in the ACT across multiple mediums, warning that “Labor will tax you to death” and that “Mr Turnbull plans to privatise Medicare”, respectively.
Those contentious campaigns brought the issue to prominence locally, as did a push by judges, professors and politicians coordinated by the Australia Institute.
Undersigning a letter to the ACT Legislative Assembly, they wrote of the need to establish “truth in political advertising” laws.
“Political advertisements that are deceptive and misleading interfere with the public’s ability to make informed decisions,” the letter read.
In the Institute’s own surveys, it found 90 per cent of people across all parties wanted truth in political advertising laws.
You may not know his name, but he will decide what is true
Under the amendments passed yesterday, ACT Electoral Commissioner Damian Cantwell is given the power to order an ad not to be disseminated, or to be retracted, if he deems it false.
Mr Cantwell will not be the sole arbiter — if there is disagreement, the matter can be referred to the courts.
But the intention is for any lie to be stamped out quickly and before it does too much damage.
How Mr Cantwell will actually be empowered to decide what is an “inaccurate or misleading” statement is less clear — and, although the Labor, Liberal and Greens parties were fast to get behind the amendments, none of them know how it will work yet.
Both major parties said if they won government, they would need to sit down with the commissioner.
Attorney-General Gordon Ramsay also expressed concern in the chamber over the legislation’s “workability” with the constitution.
But proponents say the legislation adds another level of accountability to politics.
Executive Director of the Australia Institute, Ben Oquist called the laws “preventative action”.
“If our elections are full on untruths and disinformation, effectively voters are deceived on the way to the ballot box,” he said.
“In the age of fake news, disinformation, it’s important political parties and candidates abide by the truth.”
So will the legislation have an effect on the deluge of ‘fake news’ that has become common in Australian and international political content online?
An offence for fake ads, but what about ‘fake news’?
The legislation passed yesterday will only apply to authorised political material — that is, paid-for ads or promotional material made by a politician or political entity.
Greens MLA Caroline Le Couteur, who introduced the amendments, also explained that the legislation only applied to purported statements of fact that were demonstrably false.
“It only relates to statements of fact that are inaccurate and misleading to a material extent, for example, if a candidate claimed that their opponent wanted to introduce a specific policy or tax when there was no evidence that their opponent had ever indicated that,” Ms Le Couteur said.
That means an individual’s post on social media, or an opinion piece published in a newspaper would not be subject to the new laws.
Publishers also cannot be held responsible for hosting false advertising — only a person or political entity who disseminates the information.
There is also a defence if the offender could not reasonably have known that the statement was inaccurate or misleading.
So under those constraints, would Mediscare or the Death Tax have breached the law?
The answer, unfortunately, is only ‘maybe’ — because no one is quite sure how the process will look yet.
Workable laws, but effectiveness is up for debate
Truth in political advertising laws are not without precedent — the ACT’s amendments were modelled off legislation that has operated in South Australia since 1985.
Since then, the laws have been used — the SA Commissioner requested 17 retractions or withdrawals during the 2014 and 2018 elections.
But how useful those laws have been is debatable.
A 2019 University College of London study examining the SA laws ultimately recommended against similar laws in the UK, determining “the benefits it can hope to bring are limited”.
“In order not to impinge upon free speech, such interventions can be applied only where the inaccuracy of information is unambiguous. But most of the misleading spinning that characterises political campaign discourse is much subtler,” the study found.
The SA Electoral Commission itself called for its powers to be revoked in 2014, fearing its role as arbiter could compromise its independence.
But while it may not transform political debate, Ms Le Couteur said it at least sets boundaries.
“Unfortunately in Australia there is no shortage of examples of false or misleading electoral advertising,” she said.
“While not perfect, the South Australian system has worked well there for decades.”
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