It is time to outlaw misleading political advertising – before the next election.
Implementation
Australia already has truth in advertising laws in two jurisdictions, that can be modelled federally.
Case study: South Australia
South Australia has had truth in political advertising laws since the 1980s, and still has robust election campaigning and vigorous free speech.
Section 113 of SA’s Electoral Act 1985 makes it an offence to authorise or cause to be published electoral advertisements that are materially inaccurate and misleading. The SA Electoral Commissioner can request such advertisements be withdrawn from further publication and a retraction published; they can also apply to the Supreme Court to enforce withdrawal and/or retraction.
Significantly, the Electoral Commissioner can only request a withdrawal or retraction. It is the judiciary that is the ultimate arbiter of any dispute, including any penalty or enforcement.
The maximum penalty for materially inaccurate and misleading advertising is $5,000 for individuals or $25,000 for a body corporate.
But it gets even more serious: the Court of Disputed Returns can invalidate the results of an election on the grounds of misleading advertising if that advertising affected the election result.
Case Study: ACT
As the nation’s capital and the heart of Australian democracy, the ACT has set a powerful example with tripartisan support for truth in political advertising laws.
In August 2020, the ACT Legislative Assembly passed truth in political advertising laws based on the existing South Australian laws, with the unanimous support of the Assembly’s Labor, Liberal and Greens MLAs. The laws came into effect in July 2021.
The laws establish an offence for misleading political advertising and empower the ACT Electoral Commissioner to request that the person who placed the advertisement not disseminate it or retract it in stated terms and in a stated way.
The laws are limited to electoral material that requires authorisation, and do not burden publishers any more than existing rules about defamation or offensive material do.
Under the new laws an individual could be fined up to $8,000 and a corporation up to $40,500, if they have been found to have issued untrue political advertising.
Progress Report
Victoria
It is still legal to lie in a political advertisement in VIC.
In Victoria, it is perfectly legal to lie in a political ad, and it shouldn’t be.
— Bill Browne, Director of the Democracy and Accountability Program
With bipartisan support in principle for truth in political advertising laws, it is time to get these laws in place for the next election. Our research shows four in five Victorians support the introduction of truth in political advertising laws, so why are Victorians still waiting for this important reform?
2024 – Electoral Matters Committee recommends implementing truth in political advertising laws in a review of the 2022 Victorian election
The Australia Institute launches a new petition, Victoria Needs Truth in Political Advertising Laws Before the Next Election.
Queensland
It is still legal to lie in a political advertisement in QLD.
2024 – Artificial Intelligence (AI)-generated “deepfake” video of Labor Premier Steven Miles highlights Queensland’s lack of truth in political advertising laws
2021 – In June, the Queensland Labor Conference passed a resolution calling on the Palaszczuk State Government to investigate state-level truth in political advertising laws.
New South Wales
It is still legal to lie in a political advertisement in NSW.
The Australia Institute’s Submission to the Review of the 2023 NSW election, noted that the state has missed key electoral reforms, including truth in political advertising laws.
As of 2024, the NSW Joint Committee on Electoral Matters is actively inquiring into truth in political advertising laws.
Western Australia
It is still legal to lie in a political advertisement in WA.
Tasmania
It is still legal to lie in a political advertisement in Tasmania. Labor, the Greens and others have stated support for truth in political advertising laws in principle.
2024 – In May, Independent MLC Meg Webb joined Australia Institute Tasmania Director Eloise Carr to launch a discussion paper calling on Tasmania’s 51st Parliament to fortify the state’s democracy in Democracy Agenda for the 51st Tasmanian Parliament, calling for truth in political advertising laws among other reforms.
The Australia Institute submitted to the Joint Standing Committee on Electoral Matters Inquiry into the 2024 Tasmanian elections, advising that Tasmania immediately introduce truth in political advertising laws, modelled on existing legislation in other jurisdictions.
2021 – During the 2021 Tasmanian state election campaign, the Tasmanian Greens announced a truth in political advertising laws policy which, like the new ACT legislation, was based on the South Australian model.
Shadow Attorney-General Ella Haddad also announced Labor’s support for truth in political advertising laws at a candidates’ forum hosted by the Australia Institute. At these forums, Greens candidates reiterated their support, and support was also voiced by independent, Shooters, Fishers and Farmers Party, and Animal Justice Party candidates.
Political ads that are deceptive and misleading interfere with the public’s ability to make informed decisions, but lying in political advertising remains perfectly legal in Tasmania.
— Evie Simpson, Researcher in The Mercury