‘Stop the lies’: inside the plan to outlaw political disinformation in Australia

Zali Steggall is going hard at the cause for truth in political advertising, giving her private member’s bill a name of which Tony Abbott would be proud: “Stop the lies”.

Steggall has been pushing this for a long time. Her proposed reform, tabled this week, is the Commonwealth Electoral Amendment (Stop the Lies) Bill. 

The big idea is to outlaw disinformation, the deliberate lies that have increasingly become part of the political landscape in Australia and other democracies, an approach to winning votes perfected by Donald Trump but wielded by major and minor parties here with growing shamelessness.

As Steggall points out, 86% of Australians have indicated support for the concept of truth in political advertising, no doubt moved by disgust at the carry-on of the political class, especially during election campaigns. It is, she says, time for politics to clean up its act and this is a big piece of the puzzle. 

The bill would outlaw the printing, publication or distribution of electoral matter or referendum matter (basically, advertising by any medium) containing a factual statement that is misleading or deceptive, or likely to mislead or deceive, to a material extent. There are also more specific prohibitions, for deep fakes and impersonations, designed to stop the growing trend of fraudulent advertising that has so far mostly targeted independent candidates.

This is a big deal.

At federal level, there is nothing to prevent candidates and parties from telling blatant lies (apart from defamation law). The Electoral Act prohibits misleading conduct only in the very narrow context of influencing an elector’s act of voting (voting differently from how you intended, as opposed to deciding who to vote for). That was illustrated by the case of Yates v Frydenberg, which found the Liberal Party’s Chinese language signs at the 2019 election to be misleading but not likely to have changed the result in Kooyong and Chisholm.

The new law is designed to target outrages like the Labor Party’s “Mediscare” campaign of 2016 and the Liberals’ “death tax” campaign of 2019 (both were thought to have influenced the ultimate result). It includes referendum campaigns too, in anticipation of the gross lies already being told about the Voice proposal.

Importantly, the bill will give the Electoral Commission new powers to investigate in real time and ask advertisers to take down misleading material or publish a retraction. It can then take the issue to court and seek compulsive orders. It goes some way to redressing the relative toothlessness of the AEC in the face of a degrading campaign environment.

The reform is not without precedent. South Australia has had an almost identical law since 1985. The ACT introduced one earlier this year. At federal level, the Hawke government passed an amendment introducing a similar provision in 1983, but immediately freaked out and repealed it eight months later. 

Would it work?

There is a question mark over its legal validity, because of the implied freedom of communication on government and political matters guaranteed by the constitution. The law would place a burden on that freedom, so the question would be whether it serves a legitimate purpose and is appropriately adapted to that purpose (that it doesn’t go too far).

Steggall’s explanatory memorandum, supported by some of our best constitutional thinkers, is confident that it’s on the right side of that difficult-to-define line.

The contrary view is that it’s a bit more controversial. The bill picks up anything that is likely to mislead to a material extent, relating to a question of fact. The High Court could think that there’s a bit too much subjectivity in those terms, giving rise to a concern that some legitimate political policy debate could be shut down or at least chilled. The court has traditionally been very jealous of the importance of a robust and open conversation to support free electoral choice.

If the bill becomes law, we’ll find out soon enough. The South Australian law has survived a constitutional challenge previously, but only at state court level. 

The legal question relates closely to a philosophical one: is this the right way to go in pursuit of protecting our democracy? Steggall gives an emphatic yes; she points to the established fact that Russian disinformation helped elect Trump in 2016, and firmly believes we are heading for dangerous territory if we don’t do something to, literally, stop the lies. 

It could never happen in America. The constitutional compact there honours free speech above all else, accepting that lies will be told but trusting the good judgment of the electorate. Given the state of US politics now, the faith of the founding fathers is looking increasingly misplaced.

On balance, it’s fair to conclude that the danger is real and compelling. There is a good case to do something to hold back the tide of outright, cynical deception of voters. This bill is worthy of close consideration. It’ll be interesting to see how the major parties respond.

Disclaimer: Michael Bradley’s firm acts for Steggall and has consulted on her bill.

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