Is it illegal to lie to voters in political ads?

Lies, damn lies and politics, as the aphorism doesn’t at all go. Elections have always been accompanied by healthy lashings of both types of ham: the pork barrel and the porky pie.

There’s nothing new about scare campaigns based on exaggeration or flat-out bullshit. Famously, in the 1983 election, Malcolm Fraser warned Australians that if they elected Labor they’d have to put their money under the bed because the banks wouldn’t be safe. Bob Hawke pointed out that they couldn’t because “that’s where the commies are”.  

Still, this election has triggered a loud call for something to be done about untruth in political advertising. There are two reasons for this: the rise of social media and fragmentation of messaging into targeted channels (such as WeChat) is scaring everyone; and, at the same time, some of the electioneering activity has been less about misleading voters to influence their choice, and more about screwing directly with the voting process itself.

This is a critical distinction. Voters in elections do two things: first, decide who to vote for; second, physically record that vote. One is more important than the other, as far as the law is concerned.

The law as it stands

Attention is being focused heavily on section 329(1) of the Commonwealth Electoral Act, which makes it a criminal offence during an election campaign to engage in conduct that is likely to mislead or deceive electors “in relation to the casting of a vote”.

The High Court hasn’t looked at this law since 1981. In considering whether some misleading advertising during an election offended the predecessor to s329, the court set down a clear principle, which the lower courts have been applying ever since. Essentially, it said it is not illegal to tell lies in an election campaign, provided those lies are directed only at influencing a voter’s choice of who they will vote for. It is, however, illegal to tell lies that might cause that voter, having made his or her choice, to mistakenly record their vote for someone else (or invalidly).

The court pointed to the word “casting”, meaning the physical act of voting and not the process of choosing which precedes it. If parliament had intended to encompass the latter, the court reasoned, it would have used clearer language. Anyway, given that a breach of s329 can cause the outcome of an election to be declared entirely void, the judges were worried that there’d be a flood of claims after every campaign about misleading ads, supporting attempts to overturn the result.  

There is logic in that, both legal and political. Effective democratic processes require speed and certainty as part of their design. And, despite the calls for truth to be mandated in political advertising, it would be unwise to charge too rapidly down that rabbit hole. There awaits an army of willing lawyers.

So what can be done?

But we do have a problem. Partly it is caused by the High Court’s 40-year-old dictum that in elections the gloves are appropriately off; that there is no legal limitation to what deceitful outrage a party may perpetrate in its attempts to persuade voters to choose its candidate.

Equally, the Australian Electoral Commission (AEC) has adopted what might politely and unironically be called a “liberal” approach to its application of s329. It has a standard answer to all complaints: nothing to see here, s329 cannot prevent the telling of lies.

In combination, these factors are licensing increasingly loose behaviour, reassured by the absence of consequence. There is, however, a point at which intentionally deceptive advertising is so egregious that it undermines democracy by perverting the ability or willingness of voters to make even a semi-considered choice.  

Then there is the conduct designed to directly corrupt the casting of a vote, of which we have just seen what I would say are clear examples. Chinese language signs, in the identical purple colour to that used exclusively by the AEC itself, posted up at polling booths all over Kooyong and Chisholm in Melbourne, explicitly directed voters to write “1” on their ballot papers next to the Liberal candidate, and number the others “2” onwards. The signs were authorised by the Liberal Party but bore no Liberal branding or other indication that they were political advertising. They looked, in my opinion and that of many others, like an attempt to trick some voters in relation to what they were required to do in order to cast a valid vote.

The AEC rejected that suggestion out of hand. OK, that’s its opinion, but it raises the question: if that conduct doesn’t trip over s329, then what would?

Thinking in policy terms, do we want to accept campaign activities that are seemingly designed not to persuade but to absolutely confuse? We can, I think, draw a distinction between a tolerable level of exaggeration and fibbing, in the pursuit of disinterested votes, and intentionally cynical deception designed to manipulate the vote. The law is sufficiently adept to find the language that identifies an appropriate line.

At the moment, due to the High Court’s outdated reasoning, the AEC’s abdication and some political parties’ ethical vacuity, there is no line in the sand and we’re sinking rapidly into the mud.

If nothing changes, the next election will be absolutely feral.

Disclaimer: Oliver Yates, who was an independent candidate for the seat of Kooyong, has complained to the AEC about the Chinese language signs referred to in the article, and said that he is considering legal action. Michael Bradley’s firm is representing Yates in relation to the matter.

What were the biggest porky pies you saw during the election campaign? Send them through to boss@crikey.com.au.