28 November 2022
Today, I call upon the House to end the free-for-all in political advertising.
The Commonwealth Electoral Amendment (Stop the Lies) Bill 2022—which will prohibit misleading or deceptive political advertising—is a practical, popular, and proven way to clean up our politics. It approaches the regulation of political advertising with caution and respect for our constitutional freedom of political communication.
This bill is also urgent. We live in a world where our democracy is under attack from misinformation. A vote based on lies and misleading information lacks social licence and divides our communities. It lacks legitimacy and erodes trust in election results.
Next year, the referendum on the Voice to Parliament will take place. As Brexit demonstrated in the UK, referenda are particularly vulnerable to misinformation and disinformation.
In his review of every Australian referendum, Scott Bennett concluded that 'a great deal of exaggeration and distortion is standard fare'.
Already, baseless claims that the Voice would constitute a 'third chamber of parliament' have polluted the public debate. For this reason, Professors Gabrielle Appleby and Lisa Hill recently recommended enacting truth-in-political-advertising laws to protect the legitimacy of the referendum.
We also need to protect the legitimacy of our elections. Recent elections have been marred by accusations of misleading or deceptive political advertising.
Almost three quarters of Australians came across false political advertisements during the 2022 federal election. Australians were relentlessly targeted with SMS advertising making all sorts of wild claims.
A sceptic might claim that lies have always been part of politics. But research shows that the sheer quantity of false political advertising is growing.
We cannot afford to be complacent about it because it is corrosive to our democracy and electoral processes. It can:
- manipulate and mislead citizens;
- prevent electors from understanding the true nature of policy debates and the choices before them; and
- damage the norms of political debate.
- aggravate low turnout among the disadvantaged;
- increase political, economic, and cultural polarisation; and
- undermine trust in democracy, political institutions and politicians.
At its worst, false political advertising can delegitimise electoral processes.
It stokes populist or extremist sentiment.
It threatens the peaceful transfer of power.
It can lead to social instability and civil unrest—as the 6 January insurrection at the United States Capitol showed so vividly.
Nine in 10 Australians want truth-in-political-advertising laws legislated before the next election, according to the nationally representative polling of the Australia Institute.
Support for legal reform is extremely strong across the political spectrum: coalition, Labor, Greens, One Nation and Independent voters all want greater accountability for politicians who mislead the public in search of votes.
Support for legal reform is also strong amongst Australia's leading legal and policy minds.
Last year, 39 prominent Australian political leaders, judges, academics and community leaders—from Sally McManus to Dr John Hewson, Geoffrey Watson and Professor Lisa Hill—signed an open letter calling for truth-in-political-advertising laws.
This bill legislates a commitment to truth-telling. It does so by regulating misleading or deceptive political advertising matter in a way that is effective, constitutionally sound, timely and enforceable, without chilling political speech or producing other unwanted consequences.
In so doing, the bill fills a legislative gap and vulnerability in Australia's electoral law. Existing federal protections against misleading or deceptive political advertising are simply not up to the job.
Australians in business and commerce are regulated.
The Commonwealth Competition and Consumer Act 2010 regulates against misleading and deceptive advertising in trade and commerce.
The Australian Communications and Media Authority (ACMA), the federal communications regulator, regulates media content such as gambling advertising and broadcasting rules but not political content.
This bill would prohibit ads that state that a candidate in an election made a statement that the candidate simply didn't make.
It will also prohibit people from deceptively impersonating, or falsely attributing material to, a person, candidate, campaigner, party or entity—for example, electoral matter that purports to have been published by the campaign of a candidate in an election but was in fact published by someone else or deepfaked.
The bill is modelled on South Australia's truth-in-political-advertising provision, which has successfully operated since 1985 and has survived constitutional scrutiny.
Any legal remedy to address misinformation and disinformation must not violate the implied freedom of political communication guaranteed under the Australian Constitution. Freedom of political speech and expression is the lifeblood of a thriving democracy. The honest and vigorous contest of ideas in Australian political life is a value that we are wise to respect and encourage. George Orwell recognised that, 'If liberty means anything at all, it means the right to tell people what they do not want to hear.'
The High Court has insisted that the implied freedom of political communication in Australia is to be understood not as an individual right but as a social condition. The implied freedom is concerned with the free flow of information and ideas—not with any imagined right to disseminate false or misleading material. It's possible to regulate political advertising in a way that is reasonable, balanced and proportionate.
Australia has a long tradition of world-leading democratic innovation. This bill presents another opportunity to pioneer legislation that safeguards the future of Australia's democracy.
Australians can handle the truth.
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