What are the rules around truth in political advertising in a federal election?

The Australian Electoral Commission says signs falsely depicting independent candidates as part of the Greens are in breach of the electoral act. 

Conservative lobby group Advance Australia authorised signs showing ACT Senate candidate David Pocock and Warringah candidate Zali Steggall as Greens candidates.

But neither candidate has been endorsed by the party.

Here’s the backstory

Signs featuring independent candidate David Pocock first appeared back in April.

Mr Pocock slammed the group behind the signs on social media and then lodged a formal complaint with the AEC.

At the time, the AEC said its preliminary view was that the corflutes did not breach political advertising laws.

But this week the AEC said the signs, which were also used against Zali Steggall in Warringah, were misleading and should not be displayed.

The AEC also said Advance Australia has agreed not to display the signs to avoid legal proceedings.

Pocock wants Advance Australia prosecuted over the signs

Mr Pocock said he was disappointed by how long the AEC took to act on the misleading advertising.

He has also written to the commission requesting Advance Australia be prosecuted for breaching the Electoral Act.

“Clearly, it shows just how much work we need to do in terms of truth in political advertising,” he said.

“[These signs] were clearly designed to mislead and we should have laws in place that stop these sorts of things happening.

“We’ve got them here in the ACT and we’ve got them in South Australia, and they work well.”

So what are the federal rules about truth in political advertising?

The Electoral Act doesn’t actually require truth in electoral advertising.

What it does do is prohibit printing, publishing or distributing, or causing, permitting — or authorising to be printed, published or distributed — any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote.

A valid defence is if the person can prove they didn’t know, or couldn’t reasonably have been expected to know, that it was likely to mislead an elector in casting their vote.

Court cases have clarified the Act only concerns conduct that might affect the process of casting a vote, rather than forming a political judgement about how the vote will be cast.

A recent example of ‘misleading’ or ‘deceptive’ material

A poster in Mandarin next to an official AEC sign. Both have similar purple and white colours
Purple and white posters were placed next to an AEC flag at a voting booth in the Melbourne electorate of Chisholm.(ABC News: Aula Gemma)

At the 2019 federal election, purple and white signs were placed near similarly coloured AEC signs at 13 polling stations in Treasurer Josh Frydenberg’s seat of Kooyong and 29 polling booths in Liberal MP Gladys Liu’s seat of Chisholm.

The signs told voters to preference the Liberal Party first. Written in Mandarin, the signs told voters “the correct way to vote” was to put a “1” by the Liberal candidate’s name.

The Federal Court found the signs were misleading or deceptive when placed next to AEC signs.

A composite image of Josh Frydenberg, wearing suit and tie, and Gladys Liu, wearing glasses and white blazer
Josh Frydenberg and Gladys Liu were hit with High Court challenges over their election results.(ABC News)

The court dismissed a challenge to Ms Liu and Mr Frydenberg’s election victories, saying there was “no real chance” the corflutes could have affected the results.

The court also did not refer the Liberal party’s former Victorian state director Simon Frost to the high court, despite his admission that the signs were intended to look like the AEC’s material.

South Australia legislates truth in political advertising, so why not federally?

South Australia has had truth in political advertising since the 1980s.

The state’s electoral laws make it an office to authorise or publish electoral advertisements that are materially inaccurate and misleading.

The SA Electoral Commissioner can request such ads be withdrawn from further publication and a retraction published.

The penalty is a $5,000 fine for a person and $25,000 for a corporation and an election can even be declared void if the misleading advertising is so grave that the result was affected.

There have been calls for similar federal laws from across the political spectrum for years.

A survey by the Australia Institute found 85 per cent of Coalition voters, 84 per cent of Labor voters, 87 per cent of Greens voters and 88 per cent of One Nation voters supported a proposal. 

In the 2019 election campaign, Ms Steggall called for a reform of political advertising laws after activist group Advance Australia’s ads claimed she supported Labor’s franking credits policy.

Liberal MP Jason Falinski has also supported truth in political advertising laws, saying: “We have truth in advertising across the board: it just doesn’t apply to political campaigns”.

Former prime minister Malcolm Turnbull said he would have “a very close look” at such laws following Labor’s “Mediscare” campaign for the 2016 election.

Misinformation groups have highlighted semi-closed social media platforms as areas of risk

Esther Chan from First Draft, an organisation researching misinformation and disinformation, said some narratives in this election campaign circulating on social media appear to be US-inspired, including misleading claims about the electoral system and voting processes.

“There are a lot of individual abuses and we do not know what their aims are but also notably political parties, especially minor parties sharing false claims and conspiracy theories about the electoral system and voting process,” she said.

“A couple of weeks ago there was a video posted by One Nation on Facebook containing false claims about voter fraud and that video has been taken down by a number of platforms.

“But there are copies going around in other platforms that do not moderate content because of how they position themselves — these are platforms that we are more focused on because users are not really sure about what is false or misleading.”

Ms Chan said those claims had been monitored on Facebook, Instagram and YouTube, as well as the more private platforms of Telegram and Discord. 

“We are not sure how many people actually believe in this but as it becomes more viral it is something to worry about.”

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