Erstwhile econoblogger and now federal Labor MP Andrew Leigh has been unjustly traduced by the dastardly Liberals and has complained about it on Twitter. Somewhat uncharitably some might think, I couldn’t resist a gentle return poke:
As media analyst Andrew Catsaras pointed out in a blog post last year that I’ve always intended to follow up on, political advertising is not caught by the misleading or deceptive conduct provisions of the Australian Consumer Law under the Competition and Consumer Act 2010 (Cth)(formerly the Trade Practices Act).
Section 18 relevantly reads:
18 Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Generally speaking, the conduct of political discourse, including political advertising, is not regarded as “trade and commerce”.1
Not even the Australian Electoral Commission currently has any general power to regulate political advertising as to its truth or accuracy. Accordingly, subject to general law including defamation, individuals, corporations and political parties can say just about whatever they like in political advertising, however misleading or deceptive it might be.
In some respects the vilification by false claims that the Gillard government is currently suffering at the hands of a ruthless Tony Abbott, not to mention self-interested campaigns by miners, tobacco companies and the club industry, is just punishment for the equally virulent campaigns the broad Labor movement waged against the Howard government’s GST legislation and Work Choices. Constitutional lawyer Graeme Orr made similar observations last year:
Nor are political campaigns on television new. Indeed, it was the Labor Party’s It’s Time campaign that ushered in the era of commercialised, saturation advertising promoting political causes. What has changed is the emergence of a tendency, first among governments and lately among third parties, to mount these campaigns at the drop of a policy hat, regardless of when an election is due. While they usually centre on a specific issue, the motivations behind these campaigns are more diffuse. The ultimate goal is to massage public opinion, and hence to reshape the landscape in which governments and MPs work.
In the late 1940s, the Labor prime minister Ben Chifley announced his momentous bank nationalisation policy late one evening in a short press release. For months, perhaps naively, his government focused on drafting the legislation rather than arguing its case in public. No one thought of raiding the budget to buy advertising space. The banks were cannier, and a subdued labour movement also responded, but even then their method was to recruit a bottom-up movement rather than buy a top-down campaign. Over the subsequent half-century the media paradigm has been inverted. The Keating government had the late Bill Hunter front its Working Nation campaign. The Howard government used Joe Cocker to implore us to “unchain our hearts” and embrace the GST.
Government advertising tends to be feel-good (“look how surprisingly decent our health/police/other services are!”) or reactive, designed to mollify antagonism towards troubled policies like Work Choices. Third-party campaigns pushing a positive agenda, such as the pro–carbon tax advertisements, are unusual. More common are those defending a well-defined self-interest, such as the unions’ anti–Work Choices campaign and the 2010 mining tax blitz. The success of these two mega-campaigns (costing around $20 million each) lay in their size and aggressiveness.
The lack of any regulation of political advertising (whether by political parties or others and whether during election campaign periods or not) is an entirely deliberate omission on the part of the two major political parties. Although the High Court in 1992 declared unconstitutional an earlier attempt to regulate political advertising in Australian Capital Television v The Commonwealth, there is no doubt that a prudently drafted law prohibiting misleading or deceptive conduct in political advertising would be constitutionally valid.
Obviously one would need to be careful about the form of such legislation. One would not want to stifle bona fide political debate through participants living in fear of being sued for misleading or deceptive conduct. However, carefully delimited legislation empowering an unquestionably independent expert body like the Australian Electoral Commission to monitor political advertising and order correction or removal or offending ads where necessary would undoubtedly be constitutionally valid. Graeme Orr appears to agree albeit with reservations:
How should we, as a polity, respond? We might not regulate at all, and rely on our vigilant use of bullshit detectors. But that response risks inflating cynicism. Regulating content, as opposed to controlling the form or amount of political advertising, is theoretically an option, but a fraught one. Content is culturally, not legally, determined: no one has yet devised rules to foster informed deliberation. We could extend consumer protection rules to political advertising, at least to cover factual or descriptive claims that are materially misleading. An independent panel could then receive complaints. A few costly orders to pull and re-film material would encourage advertisers to err towards reasonable material.
What do readers think? I think it’s well past time for regulation of this sort. The standard of political debate is getting lower and lower, and both parties are equally to blame with their respective “attack ad” strategies. The notion that voters can readily distinguish between political truth and lies is clearly fanciful. In my view any democratic danger posed by moderate truth constraints on political advertising would surely be outweighed by the benefit to the tone and rationality of public debate (although imagining that assured access to truth will make any radical difference is clearly naive given cognitive phenomena like confirmation bias).
- 1. Even though one could make a respectable argument for the proposition that (say) the ad campaigns waged by the mining, tobacco and licensed clubs industries against the mining tax, carbon tax and poker machine pre-commitment laws/proposals respectively were incidental to trade and commerce.[↩]
One reason that political advertising by parties is not regulated is that in the promotion of self interest stakes they are completely outweighed by the clout of political advertising by large corporates, many of which should readily spring to mind. If anything is to be done to level the playing filed for democracy as well as regulate the really big porkies, then it needs to be done to both sectors simultaneously. Right now, competing with each other for media oxygen just ups the advertising ante.
However there is a body which regulates political advertising, albeit in a humble fashion. The electoral commission is responsible for making decisions on whether pre-election advertising leaflets are misleading. They would not like it, but perhaps their role could be extended?
Hi Julia
I’m pretty confident that the AEC currently doesn’t have any general power to regulate truth or accuracy in political advertising. As the AEC itself explains in the pamphlet I linked in the primary article:
What I’m suggesting is that the AEC SHOULD be given the role of monitoring political advertising for factual truth/accuracy, and it should have that power both in relation to ads by political parties themselves and by corporations or unions etc.
Absolutely agree with your last point. The AEC has an excellent reputation for evenhandedness and would be ideal for that job.
But relying on a rather foggy memory, I seem to recollect a case during, I think, the last election where pamphlets were distributed saying a party endorsed something it didn’t, which were later withdrawn by the AEC. I suspect this kind of distinction between “ensuring that political advertising does not mislead or deceive electors” and “deciding whether political messages published or broadcast in relation to a federal election are true or untrue” is much closer in practice than in theory.
However, my interest is also in the small voices of not-for-profits and community groups which just get outshouted by the “democracy” of being able to afford a loud voice. There is a big difference between the freedom of speech of being able to voice an opinion and the oligarchy of drowning out everyone else because you can buy large quantities of advertising. There also needs to be caps on the spend on political advertising – by anyone.
Yes the AEC’s mandate extends to making sure that political advertising is properly authorised. It can also insist on removal of material that misleadingly advocates (say) the casting of an invalid vote (e.g. optional preferential when the Electoral Act requires exhaustive preferential vote).
However with that limited exception the AEC has no role in monitoring content of political advertising.
Your suggestion about money caps on political advertising would be quite likely (though not certain) to breach the freedom of political communication principles laid down by the High court in ACTV v Commonwealth (The Political Advertising Case). Again a carefully drafted law might well survive challenge but it would be tricky and uncertain. I certainly agree with you on the issue of principle.
As tempting as it seems, frankly I don’t think it should be done. Lies are more easily exposed than suppression. Just look at the difference of opinion Ken and I honestly have about whether the ruthless Abbott opposition is a pack of lying liars. And I expect he disagrees with my view that the govt are lead by mendacious fucks like Swan and Gillard
What is more, the vast majority of political statements are necessarily opinion or woolly facts. Is the carbon tax leading us to a renewable energy future or is it bad for the economy? Both those statements could be true (in fact only one is, but there’ll be disagreement about which).
Yes that’s the obvious argument against my proposition. However the ACCC has lots of experience in interpreting and applying such provisions in a commercial context. It should not be impossible to do so in a political context either. Maybe the ACCC could even have a role along with the AEC.
I agree that distinguishing between straight descriptive or factual statements and expressions of opinion (or mixed fact and opinion) can be tricky. However legislation can specify that it’s only in clear cases that intervention may occur. For example the Libs misrepresentation of what Andrew Leigh said strikes me as a very clear case. You don’t need to look beyond how the Libs characterised it and what he ACTUALLY said.
OTOH deciding on whether ads claiming that Julia lied about a carbon tax (as opposed to just broke a promise or just changed her mind) is NOT material of a type where th AEC could properly intervene.
I think these distinctions are generally much easier to apply in practice than in theory. In any event, the legislation could (and should) specify that in cases of doubt intervetion should not occur i.e. free discussion should trump misleadingness where there is any reasonable room for doubt.
You were on a good run there Ken, right up to the ACCC point – hasn’t the federal court basically told them to read the Act on about the last three or four prominent cases??
I think you’ll find the ACCC has won back a bit of street cred in recent times.
There’s a big difference in the public harm that can be done restricting political speech compared to commercial. The use of the process would be enough to do real damage even if the good guys won every time. Political speech has time constraints that don’t apply in normal commercial life.
I think you are at risk of layering subjective judgments. Is this fact or opinion, is it clear or woolly, and so on.
Plus, if you and Patrick are debating the strike rate of the ACCC then you’re effectively conceding the case. It is clearly better to allow errors than to squelch the truth.
Also, what is the remedy you want? Is it just restraints or is it fines? I think this would be the ne plus ultra of unintended consequences.
@ Ken, your reply button at the bottom of the page has disappeared so replying not in the same thread.
Not a lawyer, but had understood that was a case about banning, not capping political advertising. Think banning was understood to be a matter of suppressing freedom of speech. On my arg’t capping would present more opportunities for more voices, ergo more diversity and freedom of speech.
@Pedro, I suspect a lot of the stuff that comes before courts and other institutions charged with weighty judgement such as independent commissions are “opinion or woolly facts”, but that does not stop some kind of ruling about their accuracy.
There are only 3 layers of “nesting” of comments. After that you’re forced to start again. I’m beginning to think that “nested” display is more trouble than it’s worth. What do others think? Straight chronological display of comments leaves you to work out who (specifically if anyone) the previous commenter was replying to, but maybe that’s less confusing than mechanically “nested” comments?? The latter means that:
(1) your comment is likely to appear way up the thread because you were replying (knowingly or otherwise) to a much earlier comment; and
(2) you may be prevented from replying in a specific sense anyway (as Julia experienced) because you have reached the limit of the system’s layered “nesting” capability.
Yes, but they generally pretend to discern the actual facts, at least on the balance of probabilities, and that make sense when weighing responsibility for wrongs and hurts, but this is entirely different. Ken is calling for a form of censorship based on an apprehension that a statement of political speech is a lie or misleading. Nobody is so independent that you can have an true arbiter. The whole idea is a nonsense.
Slightly off-topic, but this ought to have every fair minded person lining up to vote for Abbott:
http://afr.com/p/national/labor_to_impose_public_interest_hnbmtCtrJErJegNcdQCcUN
Sorry for banging on, but here is some (rare) common sense on the stupidity of such proposals
http://www.smh.com.au/opinion/politics/the-obscure-world-of-public-interest-20120628-21572.html
It’s more than time to introduce truth in advertising in Australian politics. By far the worst offenders are the conservatives (and always have been). The repeated claim that Julia Gillard has been caught in a “lie” because of the carbon tax is absolute nonsense, and should have rendered the Coalition liable to criminal proceedings.
There does need to be new legislation to counter this appalling behaviour by conservatives. Any new regulation really has to include a national interest test. This would place Abbott and Co in an indefensible position. Penalties should include being barred from parliament, not only in an existing parliament, but also banning from any subsequent election.
Julia Thornton
Indeed it does. The best in the world. George W Bush would never have been President of the US had the AEC run US elections. As for
I would argue that the AEC’s pristine reputation would collapse in about 0.05 of a second after even a local council election if “truth arbiter’ were added to the AEC’s powers.
The best way to counter any perceived lies in political advertising is a well-informed citizenry. Despite nearly two decades of heavy-duty ideological warfare within state-mandated school curricular, Gen Y is incredibly dopey on Australian Civics.
Take a look at, for example, the NSW Year 10 School Certificate exam Australian History, Geography, Civics and Citizenship. Over the past 5 years, less than 5% of the total questions have focused on the constitution/parliament/electoral process.
Here is the breakdown of what government curriculum writers think the well-informed Australian citizens must know:
(i) United Nations – 10% of questions were about the history of the UN.
(ii) Australian Civics – 5%
(iii) Aborigines (Mabo, terra nullius, stolen generations, referendum) – a whopping 25%!!
(iv) Communist Party of Australia – 20%!!! Yep, you read that correctly. ALL questions about the move to ban it, not even ONE suggesting Communism might have had some smelly things about it. Don’t bother looking for the ‘DLP’. Nor will you see words like ‘liberalism’, ‘profit’, ‘tax’. To Gen Y, the Hawkeating years are known for ‘overturning terra nullius, not ‘neoliberalism’/’economic rationalism’ deregulating the banks, ‘competition’ or ‘enterprise bargaining’, let alone ‘mandatory detention!!.
(v) Feminism/multiculturalism – 15%
(vi) Post-WWII technological change – 10%
(vii) Other (mainly using historical sources) – 15%
Despite nearly 20 years of the Australian History/Civics been taught in NSW High Schools compulsorily, the same ideological forces and interests NOW insist on Orwellian state bodies to try and get the political outcomes they regard as “correct”.
The answer lies is LESS State fiddling and propaganda, not more.
Peter Patton is such a brown nose. He was probably born that way.
Psst. Most school students don’t give a toss for stupid adult pedagogy.