Currently, political advertising is not required to adhere to the same guidelines as commercial advertisers under the former Trade Practices Act (now the Competition and Consumer Act) or the Privacy Act. The lack of a requirement to adhere to the TPA prohibition on actions that “have the intent, or likely effect, to mislead or deceive” – coupled with the scale and frequency with which the message is delivered – acts as a severe constraint to reasoned analysis.
This is suggested as having a potentially far reaching impact on the tone of political debate as extreme claims would need to be substantiated and, if found to be deceptive, would result in fines or other penalties. Facing constraints that require evidentiary support (such as those required of the pharmaceutical industry), it is suggested the nature of political messaging would be repositioned due to the parties’ focus on consistency of message.
Advantages of these Reforms
This is a reform which is comparatively simple to implement, as it simply involves removing an exemption from the Trade Practices Act or (more likely) creating sui generis (unique to its own facts or situation) legislation which adopts the principles of s52 of the Trade Practices Act.
In implementation, our courts have vast experience in judging whether a person has engaged in misleading or deceptive conduct thus is an area where the courts can and should decide.
The Foundation suggests that a key advantage of this reform will be for a reduction in the hyper-adversarialism conducted by all political participants. Extreme statements that have the intent, or likely effect, to mislead or deceive would be far less prevalent in the public discourse due to the possibility that this may lead to fines or the threat of a recall election where the courts judge the breach to be substantial.
Arguments Against this Reform
“You can’t apply Trade Practices law to politicians – we know they lie. And who is going to be the judge of these things anyway?”
The Foundation does not take the popular view that politicians lie to the citizenry. On occasions where they have to change their position the power of the media and the continuous campaign cycle dictate that they do not acknowledge a change of position on camera (which provides fodder for an opposing party). The presence of legislation that would be punitive on an “intent, or likely effect, to mislead or deceive” may change the definitive, aggressive tone of some campaign communications – given that the starker the tone, the more likely the judgment would be that the likely effect will have been to mislead.
An independent judiciary will remain the adjudicator of infractions, as they are with other claims relating to political impropriety and legislation deemed to possibly be in contravention of the constitution.
“You punish politicians at the ballot box, not in courts.”
Several media commentators have dismissed the idea of a law which would punish politicians for engaging in misleading and deceptive conduct. Most notably, Laurie Oakes suggested that it should be judged and dealt with solely at elections.
Background and Origins
One of the primary advocates of this reform has been Julian Burnside QC, and the reform was put on record at the 2020 summit without gaining the support of the participants. The Foundation chooses to feature this for consideration as it is seen as a ‘small step’ reform that could have a marked change on the tone of public conversation.
Questions for Further Study
A key question to explore is whether the public is supportive on constraints on the promises made by those standing for office, and what the preferred remedy by the courts would be.
What You Can Do
A commercial research project is being pursued by the Foundation.
None yet requested.
- Australia. Parliament. Senate. Finance and Public Administration Legislation Committee. Charter of Political Honesty Bill 2000 (2002) : Electoral Amendment (Political Honesty) Bill 2000 (2002) : Provisions of Government Advertising (Objectivity, Fairness and Accountability) Bill 2000 : Auditor of Parliamentary Allowances and Entitlements Bill 2000 (No. 2) / Finance and Public Administration Legislation Committee. Publisher Canberra : The Committee, 2002.
- Trent, J. S. Political Campaign Communication : Principles and Practices Rowman & Littlefield Publishers, 2008. Buy it online (Free Shipping Worldwide)
Laurent Gutierrez and Valérie Portefaix (MAP Office)
Back Home with Baudelaire / Journey, 2004
c-print on transparency, 240 x 120 cm
© Gutierrez + Portefaix