Executive summary
Introduction
Defining ‘political advertising’

Rules governing political advertising

Conclusion
Endnotes

List of Tables

Table 1: Attention paid to campaign information
Table 2: Views of the 2004 election campaign

Executive summary

Within a day of Prime Minister John Howard calling the 2004 federal election, the media had started to predict the amount that the major political parties would spend on political advertising during the six-week election campaign. One story claimed that voters would be ‘socked with a $40m advertising blitz’ in which the major parties would spend up to $15 million each on mass media advertising and up to $5 million each on direct-mail marketing.⁽¹⁾ Television advertising was to account for more than sixty per cent of the advertising budget. These figures remained consistent in media coverage throughout the election and in the post-election analysis, with rare exceptions arguing for a much lower amount of spending.⁽²⁾

The predicted combined $30 million mass media advertising expenditure is significantly more than the combined $17 million that the two major parties were said to have spent on advertising for the 2001 campaign.^[3] The total $40 million package is also an increase on the total expenditure in the 2001, 1998 and 1996 campaigns, when the two major parties were said to have spent a combined $30 million (2001 and 1998) and $27.2 million (1996) on election marketing.^[4] In some respects, these expenditures pale into insignificance when compared with the enormous amounts spent on the presidential and general election campaigns in the United States. As at 27 August 2004, incumbent president George W. Bush and presidential hopeful John Kerry had spent a combined $A299 million on campaign advertising for the November election.^[5] Nonetheless, the Australian expenditure represents a large portion of the reported incomes of Australia’s major political parties, even allowing for the public funding that has offset the cost of their campaigns since 1984.

Cost is only one factor that must be considered when examining political advertising in Australia. Another important issue that has exercised the minds of parliamentarians, commentators and lawyers for some time is that of the actual content of political advertising, specifically whether it is possible to legislate for ‘truth’ in campaign advertisements. Twenty years ago, in 1984, an attempt was made to regulate for truth, but the law was repealed a mere eight months after it came into force. A week before Howard called the 2004 election, the issue of ‘truth’ in political advertising was again in the media, with articles claiming that political parties would be ‘free to say what they like’ during the coming campaign because ‘new election advertising rules’ meant there would be ‘reduced scrutiny’ of political advertisements.^[6] These articles reported that commercial television industry group Free TV Australia (formerly the Federation of Commercial Television Stations) had introduced ‘new rules’ and would ‘no longer vet political advertising for accuracy or seek any substantiation of claims made in the advertisements’.^[7]

In fact, the term ‘new rules’ is something of a misnomer, given that Free TV Australia  had made the decision not to vet political advertisements two years earlier, in 2002, and had applied its rules in three state elections since then.^[8] Free TV Australia argued at the time of its decision that it had no legal grounds on which to force truth in political advertisements because such advertisements were not covered by the Trade Practices Act 1974 and a parliamentary committee had recommended against introducing laws prohibiting misleading or inaccurate political advertising. Currently, the only legislation governing the content of advertisements, whether broadcast or published, relates to defamation and information regarding the casting of a vote. Calls in the wake of the Free TV Australia decision in 2002 for either laws or an independent watchdog to govern political advertising did not result in action on either option.

Another major factor to be considered in a discussion of political advertising in Australia is the alleged move to an ‘Americanised’ style of campaigning, which is understood as shrill and uncivil campaigning primarily based on negative or ‘attack’ advertising. In the fourth week of the six-week 2004 election campaign, Labor leader Mark Latham dismissed a Liberal Party advertisement targeting his alleged failings as Liverpool mayor on the grounds that such a ‘dishonest’ and ‘personal’ advertisement reflected ‘American-style negative advertising’.^[9] However, academic analysis of Australian election campaigns since 1949 has found that, historically, Australia has had high levels of general negative advertising targeting policies, parties and the like in its election campaigns and that these levels have been higher than those of the United States. As a result, political scientist Sally Young concludes that, rather than reflecting a shift to ‘Americanised’ techniques, negativity in campaigning was ‘already a quite distinctly Australian feature’, with Australia anticipating or leading the trend towards general negative advertising.^[10] That said, Young acknowledges that a more recent move towards personalised, rather than general, negative advertising in Australia can be seen to reflect American campaign-advertising styles.

Whether negative campaigning, specifically negative advertising, is a successful campaign strategy is the matter of some debate in both the media and academic literature. Some argue that negative political advertising promotes political involvement in that it engages otherwise disinterested citizens, stimulating voter turnout and confirming a commitment to free speech. Others claim negative advertising is damaging to political participation, deterring the non-aligned from voting and entrenching existing partisan preferences. While the effect on turnout is not applicable to Australia, where voting is compulsory, other considerations remain relevant. For example, even critics of negative advertising concede that such advertisements are more potent than positive ones and that they may be useful in persuading swinging voters. Falling between the polar positions on negative advertising is a recent study that concludes that negative advertisements are no more effective in attracting voters than positive advertisements.^[11] This study notes the assumption, often perpetuated in the media, that negative advertising works because voters exhibit greater recall of negative advertisements, but concludes that there is ‘no good evidence’ that they are more effective than positive advertisements.

Introduction

The media focus on the cost and content of political advertising in the 2004 election campaign provides an opportunity to explore some of the major underlying issues in the area of campaign advertising in Australia. This Research Paper is divided into four major sections:

Defining ‘political advertising’

Academic Sally Young has noted that there are three main contexts within which advertising can be considered to be ‘political’:

The focus of this paper is the latter form of political advertising, specifically election-related newspaper and broadcast advertisements. The issue of government advertising has been discussed in a separate Parliamentary Library publication, although it is worth noting here that, under caretaker conventions, non-essential government advertising stops once an election is called.^[13] The paper does not canvass lobby group and private interest advertising, nor does it discuss political campaigning more generally, which means it does not examine direct-mail or election posters and billboards. A separate, forthcoming brief will explore the campaign techniques of the 2004 federal election.

Undoubtedly, political advertising has become an essential part of the modern election campaign. Young goes so far as to argue that: ‘Political advertising is now central to the conduct, if not the results, of modern election campaigns’.^[14] It is a means by which candidates and parties can communicate directly with the electorate without any mediation.

Reaching the electorate: the importance of television

Television advertising is the preferred medium for political advertisements in Australia. Political scientist Clem Lloyd observed after the 1990 federal election:

Some commentators argue that the continuing importance of local issues in election campaigns means that mail-outs and more traditional types of political advertising remain effective because television is considered to be poor at targeting its message.^[16] In this context, television advertisements are directed at the most cynical or ‘those who would not read political mail or intentionally expose themselves to any other type of political advertising’.^[17]

However, this view understates the usefulness of, and reliance on, television advertisements. In the 2001 campaign, they accounted for about seventy per cent of the estimated $30 million that the major parties spent on political advertisements.^[18] Opinion polls also reflect the importance of television as a medium for political advertising. In a 1990 poll, sixty four per cent said they had either ‘often’ or ‘sometimes’ watched party election campaign advertisements on television, compared with thirty six per cent citing newspapers and thirty three per cent radio.^[19] Table 1 shows the percentage of respondents who said that they paid either ‘a good deal’ or ‘some’ attention to election campaign material on television, radio and in newspapers. The table also reveals that a consistently higher percentage of Australians receive campaign information from television than from radio or newspapers.

Table 1: Attention paid to campaign information

Source: Australian Election Studies 1990–2001

Rules governing political advertising

Most of the debates on political advertising in Australia focus on the content of the advertisements and whether they tell the truth or whether they contain inaccuracies and/or information designed to mislead the electorate. Before exploring these debates in detail, it is worth noting that there are some general rules related to political advertising, with legislation requiring that identification (‘written and authorised by’) tags accompany political advertisements and that advertisements not contain defamatory material.

Requirements for format and presentation

The Commonwealth Electoral Act 1918 and the Broadcasting Services Act 1992 set out the rules for the format and presentation of political advertisements in Australia. The Electoral Act contains the following requirements for the presentation of political advertisements:

In addition, s. 334 of the Electoral Act makes it an offence for any person to write, draw or depict any electoral matter directly on any roadway, footpath, building, vehicle, vessel, hoarding or place.

Until the 2001 election, the law required that authors of ‘letters to the editor’ of newspapers and journals be identified during an election period. However, this requirement (under s. 332 of the Electoral Act) was repealed in 1999 on the basis that s. 328 of the Act ‘operates constantly and effectively deals with authorisation requirements’.^[20] Callers to talk-back radio shows during an election period do not have to be identified.

The Australian Electoral Commission notes in its backgrounder on electoral advertising that the ‘written and authorised by’ tag ‘ensures that anonymity does not become a protective shield for irresponsible or defamatory statements’.^[21] It also notes that electoral advertisements must be authorised at all times, and not just during an election period.

Schedule 2 to the Broadcasting Services Act 1992 places three key requirements on the broadcasters of political advertisements. Clauses 3, 3A and 4 of Schedule 2 require broadcasters to:

The aim of the last clause, which requires what is commonly known as the electronic media ‘blackout’, is to ‘provide a “cooling off period” for electors to consider their stance on the issues without the influences of electronic media advertising’.^[22] This provision had been in place for about 50 years before being deemed unnecessary in 1991 when a complete election advertising ban was imposed (see below). However, it was re-enacted in 1992 after a High Court decision declared the complete ban invalid. The ‘blackout’ can also be seen to prevent parties making claims late in election campaigns that cannot be scrutinised before election day.

In terms of the written and authorised tags, Australia has not (yet) followed the latest move in the United States that these tags be spoken by the actual candidate. The US Bipartisan Campaign Reform Act of 2002 requires candidates to use their own voices to endorse their advertisements at the same time as their images cover at least eighty per cent of the television screen. The aim of this provision is to force candidates to take responsibility for any ‘attack’ advertisements that they produce.^[23] A prediction that the requirement would reduce the amount of negative advertising, given that ‘the long-standing practice in political advertising [is] to avoid like the plague associating your candidate with attack ads’, has not eventuated, with the 2004 presidential campaign featuring high levels of negative advertising.^[24] This will be explored further below.

Minimal rules on the content of advertisements

As noted in the Introduction to this paper, there are few regulations governing the content of political advertising in Australia, although such regulation has been the subject of considerable discussion and controversy over the years. The Australian Electoral Commission notes that the federal parliament has determined that the Electoral Act:

Hence, the Electoral Act’s clauses on the content of political advertisements relate only to material that is defamatory or that may mislead voters as to how they mark their ballot papers. That is:

Thus, there is no legislative control over advertising content that aims to influence voters in their choice of candidate or party, except in cases where defamatory content is proved.

Until 2002, the then Federation of Australian Commercial Television Stations (FACTS) dealt with complaints about the truthfulness of electoral advertising broadcast on commercial television. (FACTS has since changed its name to Free TV Australia. It vetted only television advertisements; there was no similar body vetting newspaper or radio advertisements.) The industry body had believed that political advertisements came under the auspices of the Trade Practices Act 1974, which would have given it control over the content of such advertising. (Under that Act, advertising can be challenged if it is misleading or deceptive, or is likely to mislead or deceive.^[28]) Accordingly, during the 2001 election campaign, FACTS forced the withdrawal of five advertisements that it deemed to be false or misleading.^[29] However, after receiving legal advice that the Trade Practices Act did not regulate political advertisements, FACTS announced in November 2002 that it would no longer seek substantiation for statements made in political advertisements and would not consider complaints regarding the accuracy of statements.^[30] It argued that, given that a Senate Finance and Public Administration Legislation Committee had rejected legislative options prohibiting misleading or inaccurate political advertising, it had no means of enforcement.^[31]

The FACTS decision means that there are no legal or industry checks on the veracity of statements made in televised political advertisements. On 1 July 2004, Free TV Australia cleared a revised Commercial Television Industry Code of Practice with the Australian Broadcasting Authority, but this code does not mention political advertising beyond allowing in an election period the broadcast of an additional minute per hour of non-program matter that is political matter.^[32] Calls in the wake of the FACTS decision in 2002 for either laws or an independent watchdog to govern political advertising did not result in action on either option. As one media outlet explained: ‘FACTS is basically washing its hands of the matter, handballing it to Australian Parliaments … so it’s open slather, as long as people aren’t defamed’.^[33] Senator Bob Brown lamented at the time that the FACTS decision was a disaster for democracy.^[34]  

A brief period of content regulation

Although there is currently no legislation governing ‘truth’ in the content of political advertising, this was not always the case. In February 1984, parliament passed an amendment to the Commonwealth Electoral Act 1918 to insert s. 329(2), under which it was an offence to print, publish, distribute or broadcast any electoral advertisement containing a statement that was untrue or that was, or was likely to be, misleading or deceptive. The Australian Democrats introduced the section, which was subject to little scrutiny in parliament.

In September of the previous year, the Joint Select Committee on Electoral Reform, which was established in May 1983 to inquire into all aspects of the conduct of federal elections, reported for the first time. It essentially was silent on the issue of misleading political advertisements, citing only the need for an extended inquiry into the broadcasting and television provisions concerning elections. In the subsequent parliamentary debate on the amendments to the Electoral Act, including s. 329(2), only a few references were made to ‘misleading advertisements’; much of the debate focused on the election funding and disclosure scheme.

In its second report, published in August 1984, the Joint Select Committee on Electoral Reform turned its attention to political advertising. Its principal recommendation was the repeal of s. 329(2), given the section’s potential to ‘seriously disrupt the orderly process of political campaigning’.^[35] The committee noted the concerns of both its members and witnesses that the section allowed candidates to use injunctions to prevent the publication of an opponent’s political advertisements, thereby obtaining publicity for the candidate and disrupting the opponent’s advertising campaign.^[36] Given the tight time-frame of an election campaign, a court ruling might not be made in time to be useful, which could cause ‘grave injustice’ to the candidate or party and ‘disrupt the normal political process’.^[37] The committee argued that, while fair advertising was a desirable objective, ‘it is not possible to achieve such “fairness” by legislation’, especially given that political advertising differed from other advertising in that it ‘promotes intangibles, ideas, policies and images’.^[38]  It recommended that the ‘safest course’ was to leave the decision as to whether political advertising was true or false to voters and the law of defamation. In concluding that s. 329(2) should be repealed because its ‘broad scope’ made it ‘unworkable’, the committee expressed concern that the difficulties with the clause were not raised in the debate on the amendments to the Electoral Act (noted above) when it was introduced.^[39]

Democrat Senator Michael Macklin submitted a dissenting report to the main committee report in which he argued that it would be a ‘denial of essential elements of democracy if all restraints on political advertising were removed’.^[40] He noted that arguments that the electorate would ‘reward or punish political parties for the truth or falsity of their advertising’ were similar to assertions made during parliament’s discussion of the Trade Practices Act that consumers would judge the truthfulness about advertisers’ claims about their products.^[41] In that case, legislation regulating such advertising had been introduced because it was accepted that citizens often had insufficient information to be able to ascertain the truthfulness of product advertising for themselves. Macklin argued that voters also were excluded from full information and that the Australian Electoral Commission should therefore be responsible for monitoring the veracity of political advertising claims.^[42] He claimed that repealing s. 329(2) gave parliament ‘a licence to lie’, which ‘cannot enhance the democratic process in any way’.^[43]

Most of the parliamentary debate on s. 329(2) came in October 1984 when the Labor government introduced a Bill proposing its repeal. Democrat senators continued their opposition to lifting the ban on misleading advertisements, arguing that the new Bill was deliberately timed to benefit the government in the forthcoming election campaign.^[44] Senator Colin Mason reasoned:

In a rejoinder to the Democrats’ position, Labor Senator Robert Ray argued:

The broader argument was of the difficulty in separating opinion from fact. Liberal Senator Peter Durack observed:

As a result of this debate, s. 329(2) was duly repealed in October 1984, eight months after its assent.

In 1995, the Australian Democrats moved an amendment to the Electoral and Referendum Bill 1995, reintroducing a ‘truth in advertising’ provision that was similar to the repealed s. 329(2) of the Electoral Act. The Senate passed the Bill, but the House of Representatives rejected it. The Bill lapsed when parliament was dissolved for the 1996 election.

The Joint Standing Committee on Electoral Matters and content regulation

Since 1983, the Joint Standing Committee on Electoral Matters has held an inquiry after each federal election into the conduct of the election. Although the issue of truth in political advertising has been a recurrent concern, the committee consistently has rejected tighter regulations. In its report on the 1993 federal election, it argued that ‘voters remain the most appropriate arbiters of the worth of political claims’.^[48] The committee claimed that it would be ‘entirely inappropriate’ for the Australian Electoral Commission to compromise its neutrality by making judgments on truth in advertising.^[49]

In its report on the 1996 election, the committee referred to both the private sector’s regulation of misleading advertising under the Trade Practices Act and s. 113 of the South Australian Electoral Act 1985, which bans ‘inaccurate statements of fact which are misleading to a substantial or significant extent’.^[50] It recommended that a version of the South Australian Act be introduced into Commonwealth legislation (the Electoral Act and the Broadcasting Act) and that the Australian Electoral Commission be made responsible for assessing whether there was sufficient evidence to refer complaints to the Director of Public Prosecutions. The committee agreed that the earlier s. 329(2) was ‘not the proper mechanism for enforcing “truth” in political advertising’, noting that, in addition to the limitations that earlier committees had identified, there was the matter of the Constitution’s guarantee of freedom of political discussion, which prevented the banning of political advertisements (see below).^[51]

Responding to the committee’s report on the 1996 election, the Howard Government affirmed its belief that political advertising should be truthful in its content. However, it said that ‘any legislation introduced to enforce this principle would be difficult to enforce and could be open to challenge’.^[52]

In its reports on the 1998 and 2001 elections, the Joint Standing Committee on Electoral Matters noted continuing calls for reform of the Electoral Act and the relevant broadcasting legislation to prevent ‘misleading statements of fact in electoral advertisements during election periods’.^[53] For example, in its report on the 1998 election, it noted the comments of the Labor Member for Barton, Robert McClelland, who was concerned that the distribution of election material immediately before polling day made it difficult for a candidate to rebut any misleading statements that such material contained.^[54] McClelland argued that changing the law to prevent misleading statements of fact, rather than opinion, would resolve this problem. In a similar vein, in its report on the 2001 election, the committee noted that Democrat Senator Andrew Murray had introduced a Bill ‘to amend the Electoral Act to prohibit any electoral advertisement containing a purported statement of fact that is “inaccurate or misleading to a material extent”’.^[55] The committee quoted Murray arguing that his Charter of Political Honesty Bill required political advertising to meet similar standards of probity and honesty as commercial advertising must meet under the Trade Practices Act.^[56]

However, none of these arguments swayed the committee from its opinion that regulating for ‘truth’ in political advertising was ‘unwise and unworkable’.^[57] In both of its reports, the committee supported the objections of the Howard Government and the Australian Electoral Commission to such regulation. It went into some detail in its report on the 2001 election to argue against Murray’s proposed legislation, noting the findings of the Senate Finance and Public Administration Legislation Committee to which Murray’s Bill had been referred in May 2001 for detailed consideration. The Senate committee had highlighted four key differences between the trade practices model and the proposals to regulate political advertising:

In the report on the 2001 election, the Joint Standing Committee also rejected the introduction of legislation similar to that in place in South Australia, reversing its recommendation in its report on the 1996 election when it had argued that such legislation should be introduced. Again, the committee noted the findings of the Senate Finance and Public Administration Legislation Committee, which had discussed the South Australian legislation in some detail.^[59]  The Senate committee had observed that the South Australian provision had a narrower application than the repealed s. 329(2) of the Commonwealth Electoral Act in that it was limited to statements of fact, rather than any statements (including expressions of opinion) that were ‘untrue’. However, it went on to note the comments of former South Australian Electoral Commissioner (now Australian Electoral Commissioner) Andrew Becker, who argued that the legislation had provided opportunities for individual candidates to lodge nuisance complaints, in which they complained about advertisements simply for the sake of complaining, thereby disrupting the electoral process.^[60] In response to a question from Senator Andrew Murray about whether the legislation had restrained people from telling lies, Becker observed: ‘The difficulty is in defining what the lie is’.^[61] He did not consider that the legislation had improved the behaviour in South Australia in terms of the content of political statements, and commented that the penalties had not proved to be a significant deterrent.^[62]

Controlling for content: the experience overseas

Internationally, little attention is paid to the issue of ‘truth’ in political advertising, even by the major international bodies studying democracy such as the International Institute for Democracy and Electoral Assistance (IDEA) and the Administration and Cost of Elections (ACE) project. The latter’s examination of advertising regulations distinguishes three kinds of regulations: those providing free or subsidised advertising for candidates or parties, those controlling or banning advertising activities, and those defining the campaign period to which advertising rules apply.^[63] The discussion on controls over advertisements is limited to rules concerning paid political advertisements and the display of posters.

In practice, it appears that few countries legislate for ‘truth’ in political advertising. Parliaments in the United Kingdom, Canada and New Zealand have all shied from legislating standards of truth in political advertising, citing difficulties of definition, effectiveness and rapid adjudication. Even the principle of a code of truth in political advertising has been criticised, given the imperatives of electoral participation and freedom of speech.

United States

The Constitution of the United States precludes any regulation of ‘truth’ in political advertising.^[64] The Constitution’s First Amendment states that ‘Congress shall make no law … abridging the freedom of speech’, and the US Supreme Court has ruled that this Amendment has its ‘fullest and most urgent application precisely to the conduct of campaigning for political office’.^[65] In addition, the court has ruled against compensation for defamatory statements made in campaigning unless such statements can be shown to have been made with ‘actual malice’.^[66]

Some American states have legislation, similar to that in the United Kingdom, New Zealand and Canada, protecting the reputation of candidates in political campaigns, but these statutes potentially are subject to constitutional difficulties.^[67]

United Kingdom

In June 2004, the UK Electoral Commission released a report that canvassed the issues relating to the principle and practicality of a code on political advertising.^[68] In this report, the commission noted that there was an established system of self-regulation for non-broadcast advertising that was based on a code written by the industry through the Committee of Advertising Practice and interpreted and applied by the Advertising Standards Authority. The main principles of this code are that advertisements should be ‘legal, decent, honest and truthful, and prepared with a sense of responsibility to consumers and to society’.^[69]

Until 1999, this code governed political advertising, although such advertising was exempt from some of the code’s requirements, including those relating to truthfulness. However, following concerns raised after the 1997 general election that rulings for or against political parties could damage the impartiality of the self-regulatory system, and that the Advertising Standards Authority could not respond to complaints with the speed necessary at an election, it was decided in 1999 that political advertising should be exempt from the code in total.^[70] In addition, the Committee on Standards in Public Life considered the issue of political advertising and concluded in its 1998 report that the best option was for political parties themselves to adopt a new code of practice.^[71]

In its 2004 report, the UK Electoral Commission rejected the introduction of a code for political advertising on the grounds that:

The commission concluded that political advertising should continue to be exempt from the general advertising practice code, except for the broad requirement that ‘all marketing communications should be prepared with a sense of responsibility to consumers and society’.^[73] However, it recommended that political advertisers undertake to be guided by the code, especially the sections relating to legality and decency, among others.^[74] The commission noted that, given that its priority was to promote and protect the interests of the electorate, it was ‘concerned, above all, that political advertising should encourage participation and provide voters with information to support their voting decisions’.^[75]

Canada

Canada’s regulations on political advertising explicitly prohibit the use of false or misleading information delivered with the intention of affecting the election result. Part 6, s. 91 of the Canada Elections Act 2000 states:

Part 16 of the Act, which covers communications, makes no reference to truth in advertising. Instead, it sets out the rules relating to the authorisation and transmission of political messages.

The Canadian Code of Advertising Standards, which sets the criteria for acceptable advertising in Canada, differentiates between ‘political’ advertising, which it defines as government advertising concerning policies, practices or programs, and ‘election’ advertising, which it defines as advertising regarding a political party, an election candidate or matter for referendum within an election period.^[77]  The code specifically excludes election advertising from its ambit, saying:

New Zealand

New Zealand’s Electoral Act 1993 prevents the publication, distribution or broadcast of ‘false’ statements of fact for the two days before polling day, and on polling day itself. This section, s. 199A, was introduced in 2002 and states:

The parliamentary committee that proposed this section commented that the aim was to provide a disincentive for candidates to attempt to sway voters by spreading false information so late in the election campaign that it could not be verified or refuted.^[80] The absence of legislation governing statements outside this two-day period suggests that the committee believed there would be enough time for such statements to be checked.

New Zealand’s Broadcasting Standards Authority has sole jurisdiction for complaints about television and radio advertising in ‘election programmes’, and regulates these advertisements according to its Election Programmes and Advertisements Code. The Broadcasting Act 1989 defines an ‘election programme’ as one that encourages or persuades or appears to encourage or persuade voters to vote—or not to vote—for a political party or person at an election, or that advocates or opposes a candidate or political party.^[81] The code notes that an ‘election programme’ is subject to the standards requirements of the Broadcasting Act, except for the requirement for balance, as well as the standards requirements of the Codes of Broadcasting Practice for Radio and Television and the Advertising Standards Authority Codes of Advertising Practice.^[82] The latter codes include an ‘advertising code of ethics’, which states that, as a basic principle: ‘No advertisement should be misleading or deceptive or likely to mislead or deceive the consumer’.^[83] Rule 2 of this code covers ‘truthful presentation’ and says:

Section E2 of the Broadcasting Standards Authority election program code sets some balance in the standards for political advertising in New Zealand, stating:

The expression of opinion in advocacy advertising is a desirable and essential part of a democratic society and such opinions may be robust. However, an ‘election program’ must not include material which denigrates a candidate or political party or party policy.^[85]

In a note to the code, the authority notes that it recognises the Advertising Standards Authority’s Advertising Code of Ethics, which ‘provide useful guidelines for “election programmes”’, and highlights as being of ‘particular relevance’ the rule relating to ‘advocacy advertising’. This states not only the need to allow robust opinions in a democratic society, but also that:

New Zealand’s legislation recognises the need for speed in settling complaints about advertisements in an election period. Under the Broadcasting Act, complaints about election programs are made in the first instance to the broadcaster, who has 48 hours to determine formal complaints. Dissatisfied complainants may then take the complaint to the Broadc+asting Standards Authority, which must endeavour to make a decision within 48 hours.

Advertising bans and party political broadcasts

For a short period in the early 1990s, Australia banned paid political advertising in electronic media. This was a complete ban, as opposed to the electronic media blackout on the three days before polling day, noted above. The Joint Standing Committee on Electoral Matters had discussed such a ban in its 1989 report, Who Pays the Piper Calls the Tune, expressing concern about the rising cost of political advertising for parties and candidates and the increasing dependence that parties had on corporate funding in order to pay for advertising. Although the committee considered a ban on political advertisements, it decided that this would impinge on freedom of speech and would benefit the major parties at the expense of minor parties, single-issue groups and Independents. Instead, it recommended the allocation of free time for political broadcasting on television and radio for elections and the complete disclosure of all forms of income and expenditure by registered political parties.^[87]

However, the then Labor government decided against the free-time option and included a complete ban on political advertising in its Political Broadcasts and Political Disclosures Bill 1991. The Australian Democrats amended this Bill in the Senate to provide for free television advertising time. Under the Political Broadcasts and Political Disclosures Act 1991, which came into force in January 1992, television stations were required to provide six minutes a day free time to parties and candidates for federal elections at times set by the Australian Broadcasting Tribunal (the Australian Broadcasting Authority’s predecessor). Of this time, the government and the Opposition were to be allotted forty per cent each, the Democrats ten per cent, and other candidates the remainder.^[88] The Act contained no restrictions on political advertisements in newspapers.

In the event, the new provisions never applied to a federal election. The forced withdrawal of political advertisements in various state elections led to strong criticism of the law, and the High Court of Australia subsequently struck down the legislation in a ruling in August 1992 on the grounds that the Constitution contained an implied guarantee of freedom of political communication in relation to political matters.^[89] Significantly, the Court found that it could be valid in some circumstances to control the use of the media for political advertising, but it ruled that the advertising ban went beyond a justifiable restriction of the freedom of political communication.^[90]

Although there is no ban on broadcast political advertising in Australia beyond the three-day, pre-polling day blackout, this is not the case in the United Kingdom, which has decided that the benefits of a ban outweigh its costs. The country’s Broadcasting Act 1990 states that ‘any body whose objects are wholly or mainly of a political nature’ is not permitted to advertise on radio or television. This is a major difference between the British system and the American and Australian systems of political advertising. The Broadcasting Act (UK) thereby relegates political advertising to outlets other than radio or television. As a result, both the major parties spend roughly eighty per cent of their advertising budget on billboards and hoardings. Paid advertisements in newspapers are relatively unusual.

The principal argument for the ban is to preclude a spending race of the type that charactises the American system. Large and small parties alike have defended the ban on these grounds. There is also concern that broadcasters might act partially if it was possible for political parties to purchase advertising time. The UK Electoral Commission concluded in a report on party political broadcasting in January 2003 that continuing the ban on paid political advertisements was ‘in the interests of the electorate and therefore the public interest’ as well as ‘in the interests of political parties and broadcasters’.^[91]

New Zealand also bans ‘election programmes’ (as defined above) from radio and television, except in the defined period of an election campaign. This ban does not apply to the broadcast of news, current affairs or comment programs covering political matters.^[92]

Both the United Kingdom and New Zealand allow for publicly funded party political broadcasts during an election campaign. In the United Kingdom, the party political broadcasts, which the British Broadcasting Corporation introduced in 1924 as part of its public service role, are based on a number of rationales, including:

The UK Electoral Commission noted in its review of party political broadcasting in 2003 that there was ‘widespread scepticism’ about the value of party political broadcasts, with research suggesting that many viewers and listeners switched off when such broadcasts came on. Concerns included that the broadcasts had done little to raise the level of political participation in the 2001 general election and that the parties viewed the broadcasts primarily as a chance ‘to rally the faithful and raise party morale’.^[94] In response, the commission argued that, although the figures suggested that the broadcasts had little effect on voters, comparisons showed that they were more effective than other campaign tools and were therefore an important campaigning mechanism for parties. It concluded that the principle that parties should be able freely to publicise their platforms and policies to voters, remained ‘compelling’.^[95]

In New Zealand, the government provides a ‘broadcasting allocation’ of $2.08 million to be distributed to qualifying political parties to allow them to purchase broadcast time. Academic Andrew Geddis notes that this amount has not changed since the allocation was introduced in 1990.^[96] In addition, the New Zealand Electoral Commission invites broadcasters voluntarily to contribute time for the broadcasting of election programs. The commission then allocates the total amount of time to those parties that have requested a share, according to criteria set out in the Broadcasting Act.^[97]

Advertising costs and the public funding scheme

A newspaper article published the day after Prime Minister John Howard called the 2004 election claimed that the two major parties would spend a combined $40 million on the campaign, of which $30 million would be spent on mass media advertising in an ‘advertising blitz’.^[98] Subsequent stories have reported similar figures, with only rare exceptions.^[99] For example, one post-election analysis claimed that the Liberal Party had spent only $10 million on advertising and Labor a mere $8.7 million in the six-week campaign.^[100] Given the consistency of the other reports, it may be that these totals, citing figures from a media research company, are aberrations.

Of course, the expenditure of $40 million does not necessarily equate to an advertising ‘blitz’ in that much depends on the production and broadcast/publication costs of the advertisements. Presumably, the higher the costs, the fewer advertisements and advertising slots the parties can afford. In an earlier commentary on election advertising, academic Stephen Mills claimed that media outlets charged political parties up to fifty per cent more than the going rate for advertisements.^[101]

The Australian expenditure on political advertising is minuscule when compared with the expenditure on election advertisements in the United States. Media reports in August 2004 giving the expenditures for the George W. Bush and John Kerry presidential campaigns noted that, thus far, they had spent a combined $US209 million (A$299 million)—or $US116 million ($A166 million) and $US93 million ($A133 million) respectively—on campaign advertising for the November 2004 election.^[102] In July 2004 alone, Bush spent about $US38 million (of the $US46 million he spent that month) on advertising. In the general election campaigns, US House and Senate candidates spent $US487 million and the national party committees spent $US400 million in the 18 months to June 2004.^[103]

The American figures are a firmer guide to what is being spent on election campaigns in that country than the Australian figures are to Australian campaigns, in that US law requires that details of campaign expenditure be lodged with the Federal Election Commission whereas the Australian figures tend to be media estimates based on interviews with advertising agencies and ‘media buyers’.^[104] Parties are fairly tight-lipped about their campaign plans, especially their budgets, and appear rarely to give exact details to the media.^[105] As a result, there is considerable confusion as to both the total expenditure on election campaigns and the particulars of that spending.^[106]

The transparency of campaign-specific expenditure in Australia was lost in 1997 when a legislative change again removed the requirement for parties to file election returns disclosing election expenditures.^[107] Today, parties lodge annual disclosure returns, giving total receipts, debts and expenditures for the financial year and details of those individual receipts of $1500 or more. The parties do not break down their expenditure totals, which makes it impossible to trace how much parties are spending on their election campaigns, even when the return covers an election year. In contrast, it is possible to trace the campaign expenditure of non-party endorsed (independent) candidates and non-party endorsed Senate groups because they are among those still required to file election (rather than annual) returns.^[108]

The major political parties had argued that filing annual returns and election returns created an excessive administrative burden, but in changing the law in order to eliminate election returns and thereby reduce their paperwork, they have undermined the original purpose of the scheme to publicly fund election campaigns that was introduced in 1984. That is, the scheme was intended to help candidates and parties defray the direct costs of an election campaign, not to fund on-going administrative costs or provide a financial base from which to fight future elections. In the words of the Australian Electoral Commission:

The demand for receipts meant that there could be a difference between the amount to which a party was entitled and the amount that it was paid according to its receipted election expenditure.^[110] Legislative amendments in 1995 changed the basis of election funding to a direct payment, regardless of expenditure. The commission claimed that these changes ‘did not alter the underlying principle that funding was provided to parties and candidates as a subsidy to their costs of contesting a particular federal election campaign, although that principle is not spelled out in the [Electoral] Act’.^[111]

However, given that parties no longer file election expenditure returns, it is not possible to track campaign expenditure, including the amount spent on advertising, or to compare the amounts spent with the amounts paid in election funding. Nor is it possible to say with certainty that parties are using their public election funding to pay for their campaigns. In fact, a recent criticism of the public funding scheme is that the removal of the link between funding and reimbursement has created a situation in which ‘profiteering’ can occur. That is, in removing the requirement for candidates and parties to provide evidence of their campaign expenditures, a candidate or party could be paid in public funding (according to the entitlement formula) more than it spent on its election campaign.^[112] 

The elimination of election expenditure returns also makes it difficult to judge the effectiveness of public funding in achieving the broader aims of aiding parties and candidates to pay for increasingly expensive campaigns without turning to private donors, especially corporate donors. That is, public funding is intended to reduce the reliance of parties and candidates on private donations, thereby reducing the necessity or temptation for them to seek funds that may come with conditions imposed or implied.^[113] Public funding is also intended to level the playing field for those parties and candidates without the support of financially powerful interest groups.

In the absence of campaign expenditure details, there is not enough information to assess whether the funding scheme has met these goals. However, Member of Parliament Carmen Lawrence has observed that public funding of elections has not reduced the reliance on private, corporate and union donations. Rather, ‘All that has happened is a blowout in both public (doubled since 1993) and private funding as parties engage in an increasingly expensive bidding war at elections’.^[114] Lawrence’s comments echo those of academics who undertook analysis when more information was available. They argued that public funding had encouraged, rather than contained, runaway campaign costs because it provided a floor for campaign spending.^[115] Presumably, this floor supports advertising outlets as well as parties, in that the former may charge more for publishing or broadcasting political advertisements because they know that parties have access to public funds to cover the costs.

Geddis highlights an additional problem in relation to New Zealand that is equally applicable to Australia. That is, that the delay between the date of an election and the publication of the donation disclosure details for the financial year in which the election is held means that the details of those making donations to political parties around the time of an election are not known ‘for some considerable time after the election’.^[116] In the case of the 2004 election, returns for the 2004–05 financial year are not due until October 2005 (a year after the election) and are not made public until February 2006. As Geddis observes: ‘Therefore, during the election campaign voters are left in the dark as to who is financially supporting the parties in their bid to win public power’.^[117] In contrast, the details of those who must file election returns (for example, independent candidates and non-party endorsed Senate groups) are made public twenty four weeks after polling day.

Australia’s style of political advertising

Negative advertising: the ‘Americanisation’ of Australian campaigning?

An assumption is often made that Australian political advertisements have been relatively civil when judged against the standards of those in American election campaigns. For example, an Australian television report on the US presidential elections opened with the following observation: ‘And if you thought Australian politicians sometimes fight dirty at election time, it seems they’re novices compared to their American counterparts’.^[118] However, academic analysis suggests that negative political advertisements are an important—and an inevitable—part of campaigning in Australia, given that in an adversarial party system, political advertising ‘by its very nature … must knock the other side’.^[119] Campaign specialists Fritz Plasser and Gunda Plasser have gone so far as to claim in their global study of campaign practices that: ‘To spend “heavily on extensive and overwhelmingly negative television advertising” … has become a trademark of comparably short and condensed Australian campaign seasons’.^[120]

Early in the 2004 Australian election campaign, there were signs that it would contain a major negative component. A story within days of the election being called noted that the Liberal Party was developing television advertisements ‘designed to make viewers feel uncomfortable whenever they see Labor leader Mark Latham’.^[121] The article reported that, ‘in an election campaign all sides of politics expect will be characterised by scare tactics’, Treasurer Peter Costello had refused to rule out negative advertisements.^[122] In its post-election analysis, Labor put some of the blame for its loss on the Coalition’s negative advertising campaign, which former Labor leader Simon Crean described as a ‘dishonest but ultimately effective advertising blitz’.^[123]

In her study of Australian political advertisements since 1949, political scientist Sally Young found that the level of negativity in newspaper and television election campaign advertisements had increased over time such that, since 1993, more than sixty per cent of party political advertisements have been negative.^[124] Before this, only the 1951 election campaign had had more than sixty per cent negative advertising. Although some commentators have blamed this increase in negative advertising on the ‘Americanisation’ of Australian election campaigns, the United States historically has had a lower proportion of negative advertising than Australia.^[125] According to Young’s figures, negative advertising comprised more than fifty per cent of campaign advertising in nine Australian elections between 1949 and 1996 whereas only three US elections between 1952 and 1996 featured such a high proportion of negative advertising.^[126] Offering a specific example, Young observed that a study of the 1992 US elections found that thirty seven per cent of the advertisements were negative whereas she found that in the 1993 Australian election, seventy five per cent of the advertisements were negative.^[127]

It should be noted here that these figures reflect the situation a decade ago and may not accurately represent current practice. For example, commentary on the 2004 US presidential campaign claims that the level of negativity is higher than it has been in elections over the past decade and that the negativity is occurring earlier than usual. An article in May 2004 noted that seventy five per cent of incumbent president George W. Bush’s advertisements thus far had been negative and that his level of negative advertising already was higher than the levels of the 2000, 1996 and 1992 campaigns.^[128]

In terms of content in past decades, while the absolute number of negative advertisements in Australia is significantly higher than in the US, the content of these advertisements is very different. Young found that, historically, Australian advertisements were far less likely to attack an opponent’s personal characteristics, and offered a comparison of the 2000 US presidential election, where one academic found that seventy one per cent of advertisements contained a personal attack, and the 2001 Australian federal election, where she found only 6 per cent of political advertisements contained a personal attack.^[129] She observed that a ‘relatively positive’ aspect to Australia’s negative advertisements was that seventy per cent of the negative advertisements that criticised party leaders focused on their policies and/or performance, and not their personal characteristics.^[130] (Of course, it may not be necessary for a party’s advertisements to target an opponent’s personal characteristics if such comments are carried in the general news instead. For example, Prime Minister John Howard’s query in the 1998 campaign as to whether then Opposition Leader Kim Beazley had the ‘ticker’ for the top job stuck with Beazley into the 2001 campaign. Howard himself may have attracted an unwanted, hard-to-shake tag arising from media reports a month before the 2004 election that alleged that a member of his own party described him as a ‘lying rodent’. Three weeks after the allegations were first published, the tag was still appearing in the media and in public, and political cartoonists had taken to drawing Howard with a rat’s tail.^[131])

Looking at which of the major parties was more negative, Young’s research indicated that the Coalition used negative advertising more extensively than the Australian Labor Party until 1987, when Labor became ‘the major advocate of negative advertising’.^[132] Young notes that Labor has been ‘particularly enamored’ with negative advertising since the perceived success of its 1993 advertisements attacking the goods-and-services tax.^[133] However, mid-campaign reports of the 2004 election claimed that the Liberal Party had been more negative than Labor, allegedly firing the ‘first negative shot of the campaign’, with television, radio and direct-mail advertisements targeting Labor leader Mark Latham’s management of the Liverpool council.^[134] An online opinion poll conducted in the fourth week of the six-week campaign found, as shown in Table 2, that the Liberal–National Coalition was running the most negative campaign while Labor was running the most effective campaign.^[135]

Table 2: Views of the 2004 election campaign

Source: Channel 9–Bulletin poll, conducted by the Australian National University

As noted above, a separate, forthcoming, Parliamentary Library brief will examine the campaign techniques of the 2004 election, including negative advertising, in more detail.

One explanation for the emphasis on negative advertising in Australia may be that it is a product of Australia’s compulsory voting system. The absence in Australia of ‘neutral’ advertisements encouraging people to vote may partly explain its higher percentage of negative messages. As Young comments:

Generally speaking, then, on the question of whether there has been an ‘Americanisation’ of Australian campaigning, Young disputes the assumption that ‘undesirable’ campaign techniques, seen as prevalent in the United States, are leading Australian election campaigns astray. Importantly, she observes:

That said, Young acknowledges that she has found an increased focus in Australian televised political advertising on party leaders, rather than parties, which some would consider a move towards ‘Americanisation’ and a more ‘presidential’ focus. She understands this development to be both a by-product of the modernisation of political campaigns and a consequence of the major parties sending observers to the United States to study, and ultimately imitate, specific advertising strategies.^[138]

Negative themes in Australian campaign advertising

The Liberal Party advertised the ‘communist bogey’ to great effect in the election campaign of 1949 and in campaigns throughout the 1950s and 1960s. In its 1975 campaign, it urged voters to ‘Turn on the Lights’, and in 1980, it ran a highly effective scare campaign against a wealth tax on family homes.^[139]

The Australian Labor Party ran an advertisement in the last week of the 1987 federal election campaign that featured housewife Wendy Woods, who complained incessantly about the Opposition Leader’s proposed spending cuts. One commentator claimed:

The exemplar of such a strategy—reinforcing prejudices—was Labor’s 1993 pitch against a goods-and-services tax (GST). Television advertisements presented various basic items alongside a cash register showing that a GST would increase their cost by a flat fifteen per cent. The Coalition protested that the campaign was one of ‘relentless misrepresentation’, and noted that several items would actually fall in price.^[141] In the same year, the Coalition ran an advertisement showing members of the public in the crosshairs of a gun-sight to illustrate the pervasiveness of Labor’s unemployment record. The message was that, under a Labor government, no-one was safe from losing his or her job. In response, then Prime Minister Paul Keating described the advertisement as alien to Australian culture.^[142] Queensland Liberal leader Joan Sheldon commented after the election that the ‘federal Liberals must sue or sack their advertising agency—preferably both’.^[143]

Labelling a party or person as ‘arrogant’ has been a common tactic of recent Australian political advertising campaigns.^[144] In the 1996 campaign, advertising executive Mark Pearson developed a campaign strategy for the Liberal Party based on what was seen as a successful Labor formula: ‘a single ‘Neanderthal’ proposition—always negative and stressing the risk of voting for the opposition’.^[145] The advertisements stressed Keating’s arrogance and divisiveness, and used Labor’s visual ploy of cash registers to play on fear of tax increases if Labor was returned.^[146] Labor’s advertisements focused on the positive of Keating’s leadership and the negatives of a Coalition win (the prospect of a GST and the abolition of Medicare). As a whole, the 1996 campaign was labelled at the time as ‘Australia’s most negative election advertising campaign ever’.^[147] Young observes that several commentators viewed the ‘opponent-focused assault’ on Keating as ‘an “Americanization” of Australian politics’.^[148]

The 1998 campaign was also marked by negativity and fear. The Coalition returned to its 1980 attack, running television advertisements against Labor’s plans to introduce a capital gains tax retrospectively. It used and trumped Labor’s slogan, ‘Australia Deserves Better’, with ‘Don’t Go Back to Labor—Australia Deserves Better’. Labor’s advertisements focused on the introduction of the GST, again claiming that such a tax would increase prices and insisting that a Coalition win would mean Australians would be ‘stuck with [a GST] forever’. Also in Labor’s arsenal were advertisements targeting Coalition members and senators who had supported the full of sale of Telstra.^[149] In the final week of the campaign, The Australian described the ‘frenetic television advertisements’ as ‘deliberately and disgracefully simplistic and negative’ and condemned the entire campaign as ‘an insult to the electorate’.^[150] Other media commentary disagreed, with one commentator arguing that, although there was ‘much pious hand-wringing among social commentators about the effect on our political culture of negative advertising … our parties deploy attack advertising for the simple, brutal reason that it works’.^[151] In a similar vein, another commentator argued:

Political advertising in the 2001 election campaign continued to pursue negative themes. Labor portrayed the Coalition government as ‘mean and tricky’ and in one advertisement targeted Treasurer Peter Costello, although it claimed that this was not a personal attack because it did not deal with Costello’s private life.^[153] The Coalition’s advertisements focused on its own handling of economic and border security issues or ‘keeping Australia in safe hands’ and attacked Labor’s economic record and campaign spending commitments.^[154] As noted above, the Federation of Commercial Television Stations banned several advertisements from both sides in this election on the grounds that they were misleading.^[155]

Accentuating the negative as a winning strategy

A major question about the use of negative advertising is whether it is a winning strategy or whether voters find it off-putting. In the United States, the effect of negative advertising on the quality of political judgment and election turnout is disputed.^[156] Some argue that negative political advertising promotes political involvement in that it engages otherwise disinterested citizens, stimulating voter turnout and confirming a commitment to free speech.^[157] According to these academics, ‘exposure to negative advertising appears to increase the probability that citizens will make it to the polls on Election Day’.^[158] Others claim negative advertising is damaging to political participation in the United States, deterring the non-aligned from voting and entrenching existing partisan preferences.^[159] According to these academics: ‘Negative campaigning transforms elections into an entertaining spectator sport. A healthy democracy, though, requires more than citizen spectators. We need citizen participants’.^[160] However, even these critics concede that negative advertisements are more potent than positive ones and that they may be useful in attracting swinging voters.^[161]

Falling between these positions is a recent study that concludes that negative campaign advertising is no more effective in attracting voters than positive advertising.^[162] That is, the researchers conclude:

This study notes the assumption, often perpetuated in the media, that negative advertising works because voters remember negative advertisements more than positive ones. An Australian newspaper columnist wrote of the 1998 election that negative campaigning worked in that voters ‘exhibit greater recall of negative charges levelled in attacks spots, because negative accusations about politicians reinforce the underlying disposition of most voters’ psyches’.^[164] More recently, an American newspaper article discussing the negativity in the 2004 presidential campaign cited a political consultant as saying:

The article also reported that studies had shown that people were not only more likely to recall negative advertising, but that it took fewer airings of the advertisements for people to remember them. Interestingly, this did not affect the rate of advertising for the US Senate race in South Dakota in 2002, where residents were bombarded with more political advertisements than anywhere else in the country. Between January and early October 2002, the two Senate candidates alone ran about 21 000 commercials.^[166]

A bonus for the candidate or party running a negative campaign may be the additional news coverage that such advertisements attract in the media. An exemplar of this effect in the 2004 US presidential campaign was the Swift Boat Veterans for Truth advertisement, which accused presidential candidate John Kerry of lying about his war record. The group spent about US$450 000 (A$638 000) on the 30-second advertisement, which initially was broadcast only in Ohio, Wisconsin and West Virginia. However, the controversy over its content ‘played out for weeks’ in media across the US (and around the world), giving the group’s message ‘priceless coast-to-coast media coverage for free’.^[167] As one commentator noted: ‘The influence of this ad is a function not of paid exposure but of the ad’s treatment in the free media’.^[168] Of course, a party deliberately may design a controversial advertisement in order to take advantage of this publicity ‘bonus’ effect. In the 2004 Australian campaign, the Liberal Party’s advertisement labelling Labor leader Mark Latham as the ‘learner from hell’ generated several stories in the media.^[169]

Accentuating the positive

The emphasis placed on the importance of negative political advertising suggests that there is little room for accentuating the positive in Australian election campaigns. In fact, negative political advertising must be seen as part of a broader election strategy. The general pattern of political advertising in national election campaigns is ‘positive early, intensely negative at the end’.^[170] That is, in the early stages, ‘positive’ advertisements sell the governing party’s record or the opposing party’s promises; in the later stages, ‘negative’ advertisements attack the other side.

The Liberal Party clearly used this strategy in the 2001 campaign. In the first weeks of the 33-day campaign, its television advertisements stressed that in the unstable international environment after the September 11 terrorist attacks, it was important to ‘keep Australia in safe hands’.^[171] In the week before polling day, the Coalition was reported to have spent up to $1 million a day attacking the Labor Party’s economic record and campaign spending promises.^[172]

In many ways, positive and negative political advertisements are complements. A positive message affirming an achievement or pledge is normally delivered with an implication that the opponent has not or could not deliver similarly. Examples here include Labor’s 1972 ‘It’s Time’ campaign and the Liberal Party’s 1996 ‘For All of Us’ slogan. Negative messages often imply a corresponding strength in the party presenting the advertisement. The ‘Keeping Australia in Safe Hands’ television advertisement stated:

Nonetheless, the use of overtly negative advertisements in the crucial days before the three-day, pre-election electronic media blackout prevents further advertisements from being broadcast reflects the parties’ perception of the effectiveness of such negative advertising.

Conclusion

Two weeks into the 2004 election campaign, Prime Minister John Howard demanded that the Labor Party withdraw some of its television advertisements on the grounds that they were misleading.^[173] The advertisements, which warned that the tax pressure on ‘hard-working families’ would get worse under the Howard Government, claimed that Labor’s tax policies would ‘ease the squeeze’, with Labor ‘taking the pressure off families’. However, Labor leader Mark Latham later conceded that some families would be worse off under the policies, which led Howard to allege that Latham’s ‘policy had been exposed as a fraud’ and to call for the advertisements to be withdrawn. Labor refused, with an ALP campaign spokesman reported as saying that the party stuck by its policy.^[174]

As outlined in this paper, there is currently no legal basis on which Labor could have been forced to withdraw its advertisements, had it been proved that Howard was correct in his  allegation that the advertisements were misleading. The Electoral Act states only that advertisements cannot mislead voters as to how they mark their ballot papers nor can they defame a candidate’s character or conduct. In the absence of an industry watchdog enforcing codes of practice or other guidelines, there are no rules that mediate the message. Candidates and parties have absolute control over the content of their political advertisements in terms of whether or not they contain fact or fiction.

The fourth week of the 2004 campaign opened with media reports that the Liberal Party had taken the ‘gloves off’ to attack Latham’s economic credentials, ‘saturating the national airwaves with claims he was inexperienced’ and ‘highlighting his alleged failings as Liverpool mayor’.^[175]  Senior Liberal Party members defended the advertisements on the grounds that the attacks were not personal, but targeted Latham’s performance record.^[176]  (Recall here that this is similar to Labor’s defence of its attacks on Costello in the 2001 campaign, noted above.) In response, Latham condemned the advertisements for focusing the campaign on ‘American-style negative advertising’ rather than the ‘real-life problems for the Australian people’.^[177] He claimed that Labor would continue to run a positive campaign.^[178] In the wake of the election, some analyses nominated Labor’s inability to counter the Liberal Party’s scare campaign on interest rates as one explanation for Labor’s election loss. However, as outlined in this paper, negative advertising in Australian election campaigns cannot be blamed on an ‘Americanisation’ of campaigning because Australian campaigns have been overwhelmingly negative for some years.

Endnotes