It is lawful to lie in a political advertisement under Australian law.
That may change with a recommendation from a joint parliamentary committee investigating the Conduct of the 2022 federal election.
Advertising spend by political parties is big business, especially during an election year, with both public and private donations funding campaigns.
Transparency International Australia says there are no federal requirements to disclose the source of around two-thirds of the income of the major parties, including more than $100 million in income from hidden sources in the 2019 election.
The Electoral Act was amended in 1983 to prohibit untrue electoral advertising. However, it was repealed the following year and there have been attempts ever since to bring it back.
Political support for reform is patchy. The Liberal Party wants to see a specific proposal first. The Nationals worry about freedom of political communication.
The ALP and the Greens support truth in political advertising.
Competition watchdog the ACCC noted the challenges with adjudicating on truth in political advertising, as opposed to commercial advertising, given that political debate is primarily about ideas and opinions.
"The engagement between customer and seller in a marketplace does have a much greater definition in terms of what is being offered and what is being presented as available for sale or purchase," the ACCC said in a submission to the inquiry.
"It has a greater degree of clarity to it. When dealing not just with political advertising or statements but also with public debate, which our legislation intentionally strays away from, you're often getting into battles of ideas, thoughts and opinions.
"Yes, they can arise in a commercial context, though not to the same extent or with the same precision. We think the legislation appropriately differentiates and doesn't seek to stifle what otherwise might be public debate on those issues of ideas, opinion, the political world et cetera. I think conflating the two would cause quite considerable challenges."
However, there is a distinction between truth and lies.
Truth is in the eye of the beholder, a subjective analysis. Lies can be uncovered using objective rules.
As one submission to the inquiry put it: "This occurs regularly in the context of defamation and consumer protection legislation."
Independent federal MP Zali Steggall says the reform is sorely needed.
"Public trust in politicians has been eroded over time and some of that erosion is due to their ability to lie in political ads," she says.
Steggall has been advocating for this reform since 2021 through her Stop the Lies Private Members Bill, most recently updated tabled in November 2022, to include referenda advertising.
"I am pleased to see Recommendation 12 in this report supports the establishment of a division within the Australian Electoral Commission, based on the model currently in place South Australia. Regulations, which are in line with the model proposed in my Bill," she says.
Prominent Australian constitutional lawyer George Williams argued that the absence of truth in political advertising laws is an unhealthy gap in Australia’s democracy:
"Truth is fundamental to democracy," he says.
"When citizens cannot tell fact from fiction, and leaders spread falsehoods for political advantage, society as a whole is damaged.
"The United States readily demonstrates this. (Former president) Donald Trump’s baseless claims about electoral fraud are sowing division and distrust throughout that nation and undermining good governance.
"This is a wake-up call for Australia. We need to act to limit the damage that can be caused by political lies. The legal system has a role to play in holding people and organisations to account when they spread harmful lies to their advantage.
"For example, it is illegal for businesses to mislead or deceive consumers. They cannot make wrongful claims about their product, nor spread falsehoods to undermine a competitor.
"Another example is the law of defamation that enables people to sue for damages when their reputation has been sullied.
"Where the Australian Parliament has fallen short is in regulating misinformation by our politicians. Parliament has regulated all sorts of falsehoods, but has failed to look to its own.
"The result is that politicians can lie with impunity in the hope of misleading voters to secure electoral advantage. There are many examples of this, including scare campaigns involving Medicare and death taxes."
The Australian National University Law Reform and Social Justice Research Hub argued false and misleading political advertisements undermine the legitimacy of democracy and erode public confidence in the electoral process.
"Exposure to misinformation, particularly misinformation espoused from political office holders undermines voter’s confidence in the electoral system and their elected representatives," according to a submission to the inquiry.
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