Erstwhile econoblogger and now federal Labor MP Andrew Leigh has been unjustly traduced by the dastardly Liberals and has complained about it on Twitter. Somewhat uncharitably some might think, I couldn’t resist a gentle return poke:
As media analyst Andrew Catsaras pointed out in a blog post last year that I’ve always intended to follow up on, political advertising is not caught by the misleading or deceptive conduct provisions of the Australian Consumer Law under the Competition and Consumer Act 2010 (Cth)(formerly the Trade Practices Act).
Section 18 relevantly reads:
18 Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Generally speaking, the conduct of political discourse, including political advertising, is not regarded as “trade and commerce”.1
Not even the Australian Electoral Commission currently has any general power to regulate political advertising as to its truth or accuracy. Accordingly, subject to general law including defamation, individuals, corporations and political parties can say just about whatever they like in political advertising, however misleading or deceptive it might be.
In some respects the vilification by false claims that the Gillard government is currently suffering at the hands of a ruthless Tony Abbott, not to mention self-interested campaigns by miners, tobacco companies and the club industry, is just punishment for the equally virulent campaigns the broad Labor movement waged against the Howard government’s GST legislation and Work Choices. Constitutional lawyer Graeme Orr made similar observations last year:
Nor are political campaigns on television new. Indeed, it was the Labor Party’s It’s Time campaign that ushered in the era of commercialised, saturation advertising promoting political causes. What has changed is the emergence of a tendency, first among governments and lately among third parties, to mount these campaigns at the drop of a policy hat, regardless of when an election is due. While they usually centre on a specific issue, the motivations behind these campaigns are more diffuse. The ultimate goal is to massage public opinion, and hence to reshape the landscape in which governments and MPs work.
In the late 1940s, the Labor prime minister Ben Chifley announced his momentous bank nationalisation policy late one evening in a short press release. For months, perhaps naively, his government focused on drafting the legislation rather than arguing its case in public. No one thought of raiding the budget to buy advertising space. The banks were cannier, and a subdued labour movement also responded, but even then their method was to recruit a bottom-up movement rather than buy a top-down campaign. Over the subsequent half-century the media paradigm has been inverted. The Keating government had the late Bill Hunter front its Working Nation campaign. The Howard government used Joe Cocker to implore us to “unchain our hearts” and embrace the GST.
Government advertising tends to be feel-good (“look how surprisingly decent our health/police/other services are!”) or reactive, designed to mollify antagonism towards troubled policies like Work Choices. Third-party campaigns pushing a positive agenda, such as the pro–carbon tax advertisements, are unusual. More common are those defending a well-defined self-interest, such as the unions’ anti–Work Choices campaign and the 2010 mining tax blitz. The success of these two mega-campaigns (costing around $20 million each) lay in their size and aggressiveness.
The lack of any regulation of political advertising (whether by political parties or others and whether during election campaign periods or not) is an entirely deliberate omission on the part of the two major political parties. Although the High Court in 1992 declared unconstitutional an earlier attempt to regulate political advertising in Australian Capital Television v The Commonwealth, there is no doubt that a prudently drafted law prohibiting misleading or deceptive conduct in political advertising would be constitutionally valid.
Obviously one would need to be careful about the form of such legislation. One would not want to stifle bona fide political debate through participants living in fear of being sued for misleading or deceptive conduct. However, carefully delimited legislation empowering an unquestionably independent expert body like the Australian Electoral Commission to monitor political advertising and order correction or removal or offending ads where necessary would undoubtedly be constitutionally valid. Graeme Orr appears to agree albeit with reservations:
How should we, as a polity, respond? We might not regulate at all, and rely on our vigilant use of bullshit detectors. But that response risks inflating cynicism. Regulating content, as opposed to controlling the form or amount of political advertising, is theoretically an option, but a fraught one. Content is culturally, not legally, determined: no one has yet devised rules to foster informed deliberation. We could extend consumer protection rules to political advertising, at least to cover factual or descriptive claims that are materially misleading. An independent panel could then receive complaints. A few costly orders to pull and re-film material would encourage advertisers to err towards reasonable material.
What do readers think? I think it’s well past time for regulation of this sort. The standard of political debate is getting lower and lower, and both parties are equally to blame with their respective “attack ad” strategies. The notion that voters can readily distinguish between political truth and lies is clearly fanciful. In my view any democratic danger posed by moderate truth constraints on political advertising would surely be outweighed by the benefit to the tone and rationality of public debate (although imagining that assured access to truth will make any radical difference is clearly naive given cognitive phenomena like confirmation bias).