Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

Soft soap me with just a pocket full of oil… Do we need a ‘Truth in Electoral Campaigning’ provision in the ACT?

A very quick post while I’m buried in marking.

The ACT Legislative Assembly is currently holding an inquiry into how the 2020 Election went.  There are some very interesting submissions and some difficult ideas at play.

One of the big ticket items of the moment is whether there should be a ‘truth in electoral campaigning’ provision. Last year, the Assembly passed the Electoral Amendment Act 2020, which introduced a new offence for misleading electoral advertising that had delayed commencement so that it will apply to future elections but not the 2020 election.  This was to give everybody a bit more time to work out how the law would work and function.

‘Campaigners should tell the truth’ is one of those golden statements with which no reasonable person could disagree.  Poll after poll shows that there’s a trust problem and that people strongly support proposals to get politicians to tell the truth.

The problem is that support evaporates quickly when the proposal goes beyond the broad, general principle to the specifics of how an offence provision should work.  Who should police the truth in an election campaign?

The uncommenced amendments from the Electoral Amendment Act 2020 include a new section 297A that make it an offence to disseminate or authorise the dissemination of an advertisement containing electoral matter and the advertisement contains a statement purporting to be a statement of fact that is inaccurate and misleading to a material extent.

The same section also includes new powers for the Electoral Commissioner to prohibit a person from distributing the advertisement again and to publish a retraction in stated terms and in a stated way.  The Electoral Commissioner will become the cop on the beat, policing whether politicians and other campaigners are making statements that are ‘inaccurate and misleading to a material extent’.

Although this provision is modelled very closely upon section 113 of the South Australian Electoral Act 1985, the ACT Electoral Commission is a very lean organisation.  At my last count, it has about 8 staff.  Territorians have a lot of reason to be proud of its Electoral Commission: given its resources, it does an incredible job of administering the horrific complexities of our electoral system.  But it is severely resource limited.

I am personally strongly supportive of legislative attempts to regulate misleading and deceptive conduct in election campaigns. The integrity of election outcomes depends upon our ability to facilitate rational and reasonable electoral behaviour, and this integrity is threatened by  isleading and deceptive conduct.

That said, on any view, the powers conferred upon the ACT Electoral Commission and the SA Electoral Commission are draconian. They permit the Commissioners to censor electoral materials and empower the  Commissioners to direct candidates, campaigners, or other electoral participants to publish messages authored by the Commissioner. As a  result, the SA Electoral Commission has very rarely used these powers. The cases that I have been able to find of the SA Electoral Commission using the powers were clearly very extraordinary.

The result is that there is a practical barrier to the SA Electoral Commission using these powers (an unwillingness to use the powers in borderline cases) but not a legislative barrier. The powers conferred by the SA and ACT acts are largely unreviewable and unchallengeable. In a strict sense, they are chilling: the rational actor who receives a notice from the SA Electoral Commission is likely to comply, even where the application of the Act is dubious, because the risk of the penalty outweighs the benefit of being  legally correct.

This problem is highlighted by the Hanna case. Mr Hanna was a Member of the South Australian Parliament who became, during the 2010 South  Australian election, the target of political advertising that claimed he was ‘soft on crime’. Mr Hanna sued, claiming that the advertising  misrepresented his position. The Supreme Court of South Australia was confronted by a problem of characterisation: were the political advertisements statements of fact that would attract the provisions of the Electoral Act, or were they statements of opinion that would not attract those provisions. There is no clear bright line, and the process of determining how to characterise the material was done through reference to defamation law.

The powers conferred upon the Electoral Commissioners to regulate  misleading political advertising are legally complex, and administratively burdensome.  As acknowledged by the ACT Electoral Commissioner: when required to scrutinise political advertising and act as the final arbiter on the truth or otherwise, the consequence of determinations made by the Commission could inevitably raise accusations of political partisanship. The reputation of the Commission is based inherently around neutrality and independence; accusations of partisanship could ultimately have a serious impact on the community’s perceptions of the ACT’s democratic system.

The Commissioner recommended that, instead of this function being handed to the Commission, the ACT should create a new body to administer complaints, commence investigations, and lodge prosecutions into matters of misleading electoral advertising.  But this is merely kicking the can down the road.

This is a complex and challenging question that needs to be discussed and debated properly.  It’s not enough to say that people want electoral campaigns to be platforms of truth: we need to know how people think we should police misinformation and lies in campaigns.

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