In most Australian elections, politicians, parties and candidates do not need to tell the truth in their advertisements.
Truth in political advertising laws are difficult, and many factors need to be balanced – including the need for the bureaucracy to be independent and seen to be independent, the nature of truth, the finality of elections and the constitutional right to political communication.
However, South Australia’s experience shows that legislated truth in political advertising is feasible and New Zealand’s experience shows that private regulation can work.
South Australia has had truth in political advertising since the 1980s, without major issue. The Electoral Commission is at times uncomfortable with its role as adjudicator of the truth, but truth in political advertising laws are possible without using a statutory body as the arbiter.
New Zealand has private regulation of truth in political advertising, conducted by its advertising standards body. This system has existed for decades, during which time it has dealt with complicated questions of truth with nuance and transparency.
Until 2002, Free TV Australia (then known as the Federation of Australian Commercial Television Stations) heard complaints against, and did not permit, misleading political advertising under the Trade Practices Act.
More recently, Australia’s Advertising Standards Bureau has proposed that it could regulate government advertising – which shows that they have no apparent objection to making difficult political decisions under pressure.
In addition, the tone and character of ads could be regulated to make them more balanced and instructive without legislating for “truth” per se. Political parties in Australia are already used to preparing broadcasts for the ABC and SBS that meet the public broadcasters’ requirements for an impartial tone, seemingly without issue.
The short duration of election campaigns and the finality of an election result means that penalties like forcing advertisers to withdraw or retract misleading ads may have little effect. One option is to withdraw some or all public funding from parties and candidates that are found to have authorised misleading or inaccurate ads. This penalty would affect political decision making during election campaigns, but could be applied in the months after an election – giving time for consideration, adjudication and legal avenues of appeal.
Representative polling shows that 84% of Australians support truth in political advertising laws, and that support is broadly similar regardless of who a person votes for. A variety of potential adjudication models and penalties are supported, including withdrawing public funding, as are related topics like self-regulation by the advertising and media industries and regulation of government advertisements.
Several models for increasing the truthfulness of election campaigns are available to policymakers. They are popular and proven to work in other jurisdictions.