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We Can Handle the Truth Opportunities for Truth in Political Advertising

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We Can Handle the Truth Opportunities for Truth in Political Advertising EMC Submission No. 122 Attachment 2 Received 18 November 2020 We can handle the truth Opportunities for truth in political advertising Truth in political advertising laws are supported by 84% of Australians. Successful models include industry self-regulation in New Zealand and making misleading advertising an offence in South Australia. Decisions about what constitutes “the truth” may be fraught, but they are routinely made by companies and regulators under consumer law. Australia can choose from a variety of models, but some form of truth in political advertising should be legislated. Discussion paper Bill Browne August 2019 ABOUT THE AUSTRALIA INSTITUTE The Australia Institute is an independent public policy think tank based in Canberra. It is funded by donations from philanthropic trusts and individuals and commissioned research. We barrack for ideas, not political parties or candidates. Since its launch in 1994, the Institute has carried out highly influential research on a broad range of economic, social and environmental issues. OUR PHILOSOPHY As we begin the 21st century, new dilemmas confront our society and our planet. Unprecedented levels of consumption co-exist with extreme poverty. Through new technology we are more connected than we have ever been, yet civic engagement is declining. Environmental neglect continues despite heightened ecological awareness. A better balance is urgently needed. The Australia Institute’s directors, staff and supporters represent a broad range of views and priorities. What unites us is a belief that through a combination of research and creativity we can promote new solutions and ways of thinking. OUR PURPOSE – ‘RESEARCH THAT MATTERS’ The Institute publishes research that contributes to a more just, sustainable and peaceful society. Our goal is to gather, interpret and communicate evidence in order to both diagnose the problems we face and propose new solutions to tackle them. The Institute is wholly independent and not affiliated with any other organisation. Donations to its Research Fund are tax deductible for the donor. Anyone wishing to donate can do so via the website at https://www.tai.org.au or by calling the Institute on 02 6130 0530. Our secure and user-friendly website allows donors to make either one-off or regular monthly donations and we encourage everyone who can to donate in this way as it assists our research in the most significant manner. Level 1, Endeavour House, 1 Franklin St Canberra, ACT 2601 Tel: (02) 61300530 Email: [email protected] Website: www.tai.org.au ISSN: 1836-9014 Contents Contents ..................................................................................................................................... 1 Summary .................................................................................................................................... 3 Introduction ............................................................................................................................... 5 South Australia ........................................................................................................................... 7 Statistics ................................................................................................................................. 7 Proposed changes or abolition .............................................................................................. 8 Case studies ........................................................................................................................... 9 Other jurisdictions ................................................................................................................... 12 Non-political misleading conduct ........................................................................................ 12 Mechanics of voting ............................................................................................................. 12 Commonwealth political advertising laws ........................................................................... 13 State and territory political advertising laws ....................................................................... 14 Private regulation of political advertising ............................................................................ 15 Social media private regulation ....................................................................................... 16 Regulation of political statements in other countries ......................................................... 18 Truth in political advertising considerations ........................................................................... 20 Existing provisions against misleading conduct ................................................................... 20 Limitations............................................................................................................................ 20 Standards for political broadcasts ........................................................................................... 22 ABC and SBS “free time” ...................................................................................................... 22 ABC “principles and obligations” ......................................................................................... 22 Reflections............................................................................................................................ 23 Accountability and transparency ............................................................................................. 25 Internet ad libraries ............................................................................................................. 25 Reporting.............................................................................................................................. 29 Popular opinion ........................................................................................................................ 31 Truth in political advertising laws ........................................................................................ 31 Potential penalties ........................................................................................................... 32 Adjudication ..................................................................................................................... 33 We can handle the truth 1 Political advertising and the media ..................................................................................... 34 Government advertising and promotion ............................................................................. 35 Conclusion ................................................................................................................................ 37 Appendix: Polling results ......................................................................................................... 38 Method ................................................................................................................................ 38 Full results ............................................................................................................................ 38 We can handle the truth 2 Summary 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
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