Could truth in political advertising laws have saved the Voice debate from lies?

Amid the doldrums of the defeat on Saturday night of Anthony Albanese’s boldest election commitment, the prime minister betrayed for a moment what he truly thought of the terms on which the referendum was fought. 

“I think during this campaign, we have had a very clear proposition of just two things — recognition, and a non-binding advisory committee — and we’ve had, including in outlets represented in this room, discussions about a whole range of things that were never anything to do with what was on the ballot paper tonight.

“We had pages and pages and weeks and weeks donated to those issues and how they were portrayed. For many people, it became an issue in which they were receiving a range of information.”

Much like the 2016 and 2019 election losses for Labor, it was, for Albanese, the media landscape that was to blame — and while the campaign, described as “fraught and acrid”, was filled with rampant disinformation and misleading claims about the Voice proposal, he had no shortage of opportunity to address the Yes campaign’s biggest handicap. 

Having campaigned on the issue in 2019, the Labor Party has, since forming government, not moved on the issue of truth in political advertising laws, and it is only after the fact of a comprehensive defeat at the ballot box that it has wrung its hands in sombre reflection of the state of the media landscape in this country. 

The insincerity with which the country’s fourth estate approached the referendum has been lambasted as the key to the Yes campaign’s loss, but it could have been avoided, MPs and academics said. 

“If truth in political advertising laws had been in place for the referendum, campaigners would have been more reluctant to produce misinformation,” Bill Browne, director of the democracy and accountability program at the Australia Institute, told Crikey. 

“Misleading political advertising marred the Voice referendum and led to confusion, fear and mistaken beliefs about what the Voice to Parliament represented and what its powers would be. Without truth in political advertising laws, there is a risk the next federal election will be a fake news free-for-all.”

Browne said South Australia has had truth in political advertising laws for almost 40 years, introduced under the Bannon Labor administration: “The observed effect is that they lift the quality of debate and nip misinformation campaigns in the bud.

“Truth in political advertising laws work across several fronts: setting a cultural expectation that lying is not tolerated, stopping misleading ad campaigns, providing an independent umpire’s ruling that content is in fact misleading and deceptive, imposing a financial penalty and, potentially, allowing for an election to be held again if misleading advertising skewed the final result.

“Invalidating election results is only one of several effective remedies.”

South Australia’s Electoral Act includes penalties of fines for misleading political advertising, as well as the potential for electoral results to be invalidated by the Court of Disputed Returns, should the court find on the balance of probabilities that the election result was affected sufficiently by the material in question. 

Independent MP Zali Steggall says the warning signs were clear for the government. She told Crikey: “It was essentially one of the first things coming in as a non-politician that I was most shocked about in 2019 — the fact that there were just no standards.”

There is a bill before the house, tabled by independent MP Kate Chaney, that although based on the South Australian model, lacks the mechanism of invalidation.

Steggall sponsored the bill and says legislators need to act with caution: “The way this legislation needs to work is by deterrence. I think entering into disputing outcomes of elections, I think becomes dangerous territory of presuming which facts ultimately determine a voter’s intentions.

“What we want to make sure is that when they are voting, they’re doing it [based] on factual information.”  

Steggall previously tabled a bill to the house in November 2022, almost identical to Chaney’s, and said the government has dragged its feet on the issue, despite indicating it supported it in principle. 

“I amended [the bill] to include referendum processes and tabled it [in November] to ensure that it could be put in place prior to the referendum so that we could have a standard around that,” she said. “And obviously, the government put forward other legislation amending the processes around the referendum — so there was plenty of opportunity to support my bill or put up something equivalent. 

“They’ve quite arrogantly just kind of said, ‘Not now, it’s not needed,’ despite the fact that they’ve actually supported that in principle and indicated that they support legislation against misinformation and disinformation.” 

Steggall warned the government against trading away changes to truth in political advertising laws (which are opposed by the opposition) as part of broader changes to electoral reform, including tighter caps on electoral donations which are opposed by a number of independents. 

“What we’re also aware of is, they’re in the process of negotiating a deal with the Coalition that I would argue is intended to cement the advantage of the duopoly of the major parties,” she said. 

“In those negotiations, [there] could well be a change in relation to their position on truth and political advertising. So what I’m really concerned about, [is] that in looking after self-interest, they’ve really failed to protect democracy.” 

In a statement to Crikey, a government spokesperson said the government would move on the issue after the final report of the Joint Standing Committee on Electoral Matters on the 2022 federal election, expected later this year. 

“Electoral reform should always be consultative and bipartisan,” the spokesperson said.