3. Trust in the electoral system
   1. One of the overarching themes of this interim report is maintaining trust in our electoral system - that our elections are strong but could be stronger.
   2. The terms of reference for this inquiry included the potential for 'truth in political advertising' laws to enhance the integrity and transparency of the electoral system. The Committee received a number of proposals for truth in political advertising laws, which are considered in this chapter.
   3. As determined by the High Court in a series of decisions in the 1990s, an implied freedom of political communication exists in the Constitution of Australia. However, in 1997 the High Court found that a law that restricts that freedom may still be valid if it is ‘reasonably appropriate and adapted to achieving that legitimate object or end’ that is compatible with the ‘maintenance of the constitutionally prescribed system of representative and responsible government.’[1] In particular, in several cases such as Unions NSW v New South Wales [2013], the High Court reaffirmed that laws relating to election integrity are legitimate in implied freedom cases providing that they reasonably serve a legitimate end.[2]
   4. This chapter considers some of the evidence received on these issues, including assessing the challenges involved in balancing the need to inform voters of issues, and principles of freedom of political communication. The Committee is also aware that rising levels of public distrust can serve to further alienate citizens, which might result in their unwillingness to be involved in elections.
   5. This chapter provides an overview of the evidence received to date to the inquiry, including:

• why truth in political advertising laws are needed;
• some of the issues arising in regulating truth in a political context;
• legislation regulating political advertising in other jurisdictions; and
• options for addressing truth in federal political advertising, which could also address the growing lack of trust in democratic processes.

Why truth in political advertising laws are required

3.6Over the past two decades, parliamentary committees at both the Commonwealth and State level have considered truth in political advertising laws. The Electoral Act was amended in 1983 to prohibit untrue electoral advertising. It was however repealed the following year. The Committee has considered this issue ever since its establishment in 1983.

3.7The Committee’s report on the 2019 federal election addressed a broad range of issues which included truth in advertising,[3] misinformation and disinformation,[4] and the authorisation of political campaign material.[5] Key recommendations from that report included:

• that the ACCC and ACMA adapt regulation and work with the Australian Electoral Commission (AEC) to address electoral and political advertising;[6] and
• that the Electoral Integrity Assurance Taskforce be engaged permanently to prevent and combat electoral or foreign interference.[7]
  8. That report also referred to the work of the Senate Select Committee on Foreign Interference Through Social Media in relation to misinformation and disinformation.[8] The Senate Select Committee tabled an interim report in December 2021 which addressed the spread of disinformation using social media.[9]
  9. As Democracy Matters noted, the public’s trust in elected representatives is vital to a functioning democracy:

All parliamentarians should be concerned by the findings of the longitudinal Australian Electoral Study which shows a steady decline over 20 years in voter satisfaction with democracy, trust in government and political efficacy (Trends in Australian Political Opinion 1987 - 2019, pages 98 - 101). Truth and trust are bound together - they are central to the social contract between voters and elected representatives, they are what makes our system of democracy function. The nexus between truth and trust explains why voters feel so disheartened and frustrated when elected representatives bring any aspect of the democratic system into disrepute.[10]

3.10Similarly, the Australian National University Law Reform and Social Justice Research Hub argued that:

False and misleading political advertisements undermine the legitimacy of our 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.[11]

3.11Professor 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. 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. 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.[12]

3.12The Australian Labor Party noted its support for truth in political advertising laws, highlighting that such legislation would:

further enhance transparency and improve the integrity of federal election campaigns. [...] A national framework for truth in political advertising would give voters additional confidence that the arguments put forward by participants in federal elections are not false or misleading.[13]

3.13The Australian Greens also argued for truth in political advertising laws, noting that ‘Confidence in Australia’s democratic processes has declined dramatically over the past decade’ and that preventing misleading campaigns would contribute to reversing that trend.[14]

3.14The Australia Institute highlighted the significant community support for truth in political advertising in reporting on research conducted after the 2022 election:

… three in four voters (73%) came across political advertisements that they knew to be misleading, with most seeing at least one such advertisement a week during the campaign. Nine in 10 (86%) Australians agree that truth in political advertising laws should be in place by the next election.[15]

3.15Truth in political advertising laws also received strong support from independent candidates and Members of Parliament.

3.16Dr Monique Ryan MP argued that Australia ‘desperately need truth in advertising laws’, on the basis that:

Good governance is predicated on voters having faith in the strength of the democratic process. In the business world, it is illegal to mislead or deceive consumers. It seems very strange that we hold our politicians to a lower standard than our businesspeople.[16]

3.17Zali Steggall MP, noting her introduction during the 46th Parliament of the Commonwealth Electoral Amendment (Stop the Lies) Bill 2021, also argued that:

... holding politicians and political campaigners accountable to the same standards as business is critical to the very heart of our democracy. Voters throughout the country expect to see a level of regulation against misleading and deceptive advertising. … Consumer laws safeguard the public against false advertising by businesses. There are strict laws governing financial advice. Pharmaceutical manufacturers cannot claim their product cures something it does not. Lawyers cannot guarantee outcomes or that they will win every personal injury claim. Yet, voters have no protection against deliberately misleading information distributed during an election campaign.[17]

3.18Kylea Tink MP described such laws as ‘urgently needed’ in ‘an age of disinformation’, noting that ‘Fake news and deliberate misinformation and misrepresentation continue to erode trust in government, and our democratic institutions by the electorate’.[18]

3.19Andrew Wilkie MP argued that ‘We also need laws which require truth in political advertising’, and that parties and candidates ‘making underhand, and often false’ statements about opponents ‘inhibits the community’s ability to engage constructively and participate genuinely in democracy’.[19]

3.20Both the Liberal Party of Australia and The Nationals argued against the introduction of truth in political advertising laws. The Liberal Party argued that since ‘No specific proposal has been put forward by the Labor government in this area’, ‘Labor does not have a mandate to introduce what could be a significant change to our electoral system’ and highlighted some questions that they suggested needed to be resolved.[20]

3.21The Nationals stated that, ‘With no detail of any specifics, The Nationals cannot support the introduction of any ‘truth in political advertising’ law’, and also noted that many questions would be raised by the introduction of such legislation.[21]

3.22The NSW Nationals indicated however that they were open to seeing a proposal, but expressed concerns about impacts on the implied freedom of political communication:

I think that the New South Wales Nationals, and probably the National Party more broadly, could be supportive of some change here, provided the model that the committee comes up with is palatable. I don't have the answer for what the model might be, but it's definitely worthy of consideration.[22]

3.23While the impact of mis- or dis-information is a broader topic than this inquiry’s focus allows, Professor Luke Beck highlighted that truth in political advertising laws have a widespread impact, influencing the political culture as a whole:

Perhaps the most important goal of truth in political advertising laws is to improve political practice and promote a better political culture. The South Australian Electoral Commissioner, who enforces SA’s truth in political advertising laws, has commented that such laws have a meaningful impact in reducing misleading electoral advertising and does so because of the political culture the existence of the law has helped to create.[23]

3.24The Canberra Alliance for Participatory Democracy made a similar point in supporting truth in political advertising laws, arguing that ‘The very existence of such legislation will act to curb excesses of mis- and dis- information by making clear the expectation for campaigns to focus on policy and the quality of candidates’.[24]

3.25Multiple witnesses highlighted that making decisions and settling issues about what constitutes fact or opinion can be challenging. ACMA advised that it was important to distinguish between hyperbole, exaggeration and opinion compared to facts, noting that:

Each of the codes that we administer are in relation to commercial broadcasting, but they also have some role in relation to the ABC and SBS. Each one of them clearly distinguishes between breaches of factual accuracy and questions of distinguishing between opinion and fact.[25]

3.26Professor Beck and Professor Williams each held the view that the focus should be on the regulation of purported statements of facts rather than opinions or ideas in contested areas.[26] The Australia Institute advocated for the protection of opinion and predictions, and limiting laws to advertising.[27]

3.27Real Republic Australia argued that ‘parties and individuals are always entitled to hold opinions’ but that ‘voters are right to have a reasonable expectation that such claims or opinions are anchored in fact.’[28] They added that ‘laws that govern publication of claims or opinions must be framed carefully to avoid being judged as infringing any implied right to freedom of expression in the Australian Constitution.’[29]

3.28The ACCC highlighted 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. 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.[30]

3.29Dr Judy Hyde was one of many submitters who called for clarity in ensuring the public is aware of statements of opinion:

Should opinion be excluded from truth, it needs to be made incumbent on candidates to ensure that the public is clearly aware that statements made are opinion, not objective facts. If this does not occur the public can become lost and driven by ‘alternative facts’ …[31]

3.30However, as some witnesses pointed out, there is a distinction between arbitrating what is truth and taking action on what is untrue:

We start by asking the question, what is the problem such laws are trying to solve? We don’t believe it is the need for greater truth in political advertising. Rather, it is the prohibition of lies. Truth will inherently have a subjective quality which makes the compulsion of it difficult to monitor and regulate. But lies or misleading conduct can typically be assessed and objectively tested. This occurs regularly in the context of defamation and consumer protection legislation.[32]

Legislation in other jurisdictions

3.31Federal and state jurisdictions in Australia attempted to establish truth in political advertising laws in the 1980s. A federal provision was enacted in 1983 but repealed the following year. Most Australian jurisdictions have enacted legislation that contain provisions banning statements seeking to mislead voters on how to fill out a ballot paper.

South Australia

3.32Of Australia’s states, only South Australia has enacted legislation regulating misleading advertising. Section 113 of the Electoral Act 1985 (SA) states that:

A person who authorises, causes or permits the publication of an electoral advertisement (an advertiser) is guilty of an offence if the advertisement contains a statement purporting to be a statement of fact that is inaccurate and misleading to a material extent.[33]

3.33The Electoral Commission South Australia (ECSA) noted that ‘misleading advertising provisions can be found in both the Electoral Act 1985 (SA) and the Local Government (Elections) Act 1999 and, therefore, is relevant to both state parliamentary and local government elections.’[34]

3.34Section 113 provides the South Australian Electoral Commissioner with the power to take action if an electoral advertisement is determined to be inaccurate and misleading. Powers include requesting removal of the publication, requesting the advertiser publish a retraction, issuing fines[35] and, declaring the election ‘void on the ground of misleading advertising but only if the Court of Disputed Returns is satisfied, on the balance of probabilities, that the result of the election was affected by that advertising.’[36]

3.35The provision only applies to advertisements published by any means (eg. billboards, leaflets, digital advertisements, social media posts, or broadcast advertisements produced by a party, candidate, or other organisation that seeks to affect an election result), and not to other circumstances, such as newspaper articles or statements of opinion.[37]

3.36The ECSA acknowledged that administering the legislation had a number of challenges, particularly due to complainants not understanding the legislation, complainants not providing enough information, requesting responses from publishers of material, time delays and an exponential increase in complaints:

Misleading advertising is a particularly challenging piece of legislation to administer coupled with the fact that the number of complaints has dramatically increased from 38 at the 2018 state election to 122 at the recent state election in March this year [2022].[38]

3.37When a complaint is made to the ECSA, and all of the information they require from the complainant has been received, they engage the services of the Government of South Australia’s legal service, the Crown Solicitor’s Office, to provide advice on whether any further action is required:

There is a large number of solicitors there who have been working in this area for a long time. They are very familiar with this piece of legislation. They are on standby basically 24 hours during the two-week voting period and on polling day. They provide very quick advice to us in order to provide me with advice. I then consider that and form a view about any further action. Without their assistance, it would be very hard and it would not be done in a timely way …[39]

3.38If the ECSA requires any additional investigative work, they also seek the assistance of the Crown Solicitor’s Office. The ECSA noted that even with additional investigative resources, and providing all the parties involved are able to provide all the information they need for the SA Electoral Commissioner to make a decision, ‘it’s very rare that [the ECSA] can resolve one of these complaints in a very quick period of time.’[40]

3.39The figure below from the ECSA’s 2018 South Australian State Election report ‘illustrates the time-consuming nature of the investigation process.’[41]

Source: Electoral Commission South Australia, Election Report, 2018 South Australian State Election, p. 80.

3.40In circumstances where a party, candidate, or other organisation does not comply with the ECSA’s request to remove material, a petition can be lodged with the Court of Disputed Returns. As noted above, the ‘Court of Disputed Returns can render the election void and as for it to be redone.’[42] No election to date has however been declared void since the legislation was introduced in 1985. All decisions of the Court are final, conclusive and without appeal, and may not be questioned in any way.[43]

Australian Capital Territory

3.41In August 2020 the ACT passed truth in political advertising laws largely based on the South Australian legislation. The ACT Electoral Commission defines inaccurate and misleading electoral advertising as when:

… a person disseminates, or authorises for dissemination, 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.[44]

3.42The new Territory laws ‘establish an offence for misleading political advertising and empower the ACT Electoral Commissioner to request that the person who placed the advertisement not disseminate it or retract it in stated terms and in a stated way.’[45]

3.43Similar to the South Australian legislation, the ACT law also enables the Electoral Commissioner to issue a fine for an individual ‘up to $8,000 and a corporation up to $40,500, if they have been found to have issued untrue political advertising.’[46]

3.44A complainant must meet a number of criteria which is used to assess whether the political advertisement is inaccurate and misleading:

• the advertisement must contain electoral matter as defined the ACT Electoral Act
• the advertisement must contain a statement purporting to be a fact. That is, the Commissioner cannot apply misleading electoral advertising law against statements of opinion; and
• the relevant statement must be inaccurate and misleading to a material extent.[47]
  45. The complaint must also ‘identify the element of the advertisement that is being disputed as inaccurate and misleading and will require detailed evidence in support of this claim.’ If it is determined the complainant has met the above criteria, the ACT Electoral Commissioner undertakes an investigation ‘where it may be necessary to seek further information from either or both of the complainant and the alleged offender.’[48]
  46. In certain circumstances it may also be necessary for the ACT Electoral Commissioner to seek external advice before making a determination.[49]
  47. If determined that a breach of the law has occurred, remedial action by the person responsible for the advertising will be required. The ACT Electoral Commissioner ‘may formally write to the person asking them to not disseminate the advertisement again; and/or publish a retraction in stated terms and in a stated way.’[50]
  48. The ACT Electoral Commissioner also has the power to ‘apply directly to the Supreme Court for an order obliging the person to cease disseminating the advertisement further and/or publish a retraction’ and ‘refer the matter to the Director of Public Prosecutions for possible criminal prosecution.’[51]

Ireland

3.49Online political advertising is now regulated by legislation in Ireland. On 25 July 2022, Ireland’s National Parliament (Oireachtas) passed the Electoral Reform Act 2022 which established, among other things, Ireland’s Electoral Commission (An Coimisiún Toghcháin).[52] Under the legislation, the Commission is responsible for the regulation of online political advertising:

… under the provisions of the [Act], Ireland will be among the first countries in Europe to provide for the regulation of online political advertising. These provisions are proposed to ensure that online political advertisements are clearly labelled and are accompanied by transparency notices clearly identifying the sponsor of the advertisements, their associated costs and why the recipients of such advertising are being targeted.

The [Act] applies similar but enhanced requirements to paid online political advertising commissioned during electoral periods to those that apply to traditional poster-type advertising. The Bill will place an obligation on online platforms to determine if advertisements fall under the scope of the legislation and, for the purposes of transparency, to identify and verify the information and documentation provided by the buyers of the advertisements.[53]

3.50Established on 9February 2023, Ireland’s Electoral Commission will have significant role in the monitoring, investigating and combatting misinformation and disinformation. Under Part 5 of the Electoral Reform Act, which has yet to commence, the Electoral Commission can:

• monitor, investigate and combat the dissemination of disinformation and misinformation;
• monitor, investigate, identify and combat manipulative or inauthentic behaviour;
• monitor, investigate and identify trends in respect of disinformation, misinformation and manipulative or inauthentic behaviour.[54]
  51. Part 4 of the Electoral Reform Act, which has also yet to commence, makes the Electoral Commission ‘responsible for ensuring that political advertising on social media and other digital platforms is fully transparent and clearly identified.’[55]
  52. The Electoral Commission’s remit is also to ‘promote public awareness of misinformation, disinformation and manipulative or inauthentic behaviour and will establish educational and information programmes to help address this issue.’[56]
  53. Prior to the passing of the Electoral Reform Bill, Ireland’s Joint Committee on Housing, Local Government & Heritage (JCHLGH) undertook an inquiry into the Bill. In their report the JCHLGH noted the challenges in regulating free speech versus misinformation:

The Committee notes there is a challenge in the regulation of such strategic planning as it is a matter of opinion as to what constitutes free speech versus what is a politically driven campaign of misinformation and disinformation intended to motivate particular voter action or inaction. In this regard the Committee strongly wishes to highlight the fact that political advertising is not the only tool deployed in the context of electoral and political influence. While the issues surrounding the regulation of the misuse of social media platforms aren’t easily captured, the Committee believes this should be explored.[57]

3.54In the report the JCHLGH noted that they were ‘particularly concerned that data collected by political parties and other political operatives through online surveys, email campaigns, and social media activity can be used to micro target voters without their express permission.’[58] At that time, the Committee held the view that the ‘current sections of the legislation regarding online political advertising do not go far enough to address the concerns of the Committee.’[59]

New Zealand

3.55New Zealand take a different approach to the regulation of political advertising. Rather than being regulated under the auspices of an electoral body, the New Zealand Advertising Standards Authority (NZ ASA) and the NZ Broadcasting Standards Authority (NZ BSA) are empowered to examine all election advertising.

3.56The NZ ASA ‘oversees advertising in all media other than party or candidate election programme broadcasts on TV and radio.’[60] All advertising, including political advertising, must comply with the NZ ASA Advertising Standards Code which states:

Advertisements must not mislead or be likely to mislead, deceive or confuse consumers, abuse their trust or exploit their lack of knowledge. This includes by implication, inaccuracy, ambiguity, exaggeration, unrealistic claim, omission, false representation or otherwise. Obvious hyperbole identifiable as such is not considered to be misleading.[61]

3.57The NZ BSA oversees ‘most advertisements for products, services or organisations on TV, radio, the internet, print and billboards’ including ‘third party programmes about elections or referendums [which] must follow the relevant broadcasting standards for radio, free-to-air TV or pay TV.’[62]

3.58A 2019 report by a UK university gives an overview of New Zealand’s efforts to counter misleading advertising during election and referendum campaigns, noting that:

Broadcast election advertising in New Zealand is tightly restricted: only parties or their candidates may promote such advertising; parties may pay for such advertising only using money allocated to them from a fixed pot of public funds.[63]

3.59The report also states that the ‘[NZ] BSA has several codes of practice, all of which contain accuracy requirements.’[64] The free-to-air television code requires broadcasters to ‘make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead.’[65]

3.60The Election Programmes Code of Broadcasting Practice regulates the content of broadcast election programmes. The Code covers election programs that:

• encourages or persuades, or appears to encourage or persuade, voters to vote for a party or the election of a constituency candidate; or
• encourages or persuades, or appears to encourage or persuade, voters not to vote for a party or the election of a constituency candidate; or
• advocates support for a constituency candidate or for a party; or
• opposes a constituency candidate or a political party; or
• notifies meetings held or to be held in connection with an election.[66]
  61. The Election Programmes Code does not cover print, billboards, pamphlets, cinema and online – including social media, or any media by third-parties.
  62. The Election Programmes Code applies the following standards to all election programmes broadcast in New Zealand:

• election programs are subject to other codes
• election programs may include debate, advocacy and opinion, but factual information should be clearly distinguishable from opinion or advocacy, and factual information must be able to be substantiated
• while an election programme may oppose a political party, or candidate, it may not include material which denigrates a political party or candidate
• an election programme may not imitate an existing programme, format or identifiable personality in a manner which is likely to mislead.[67]
  63. The NZ Electoral Act also contains a provision relating to the distribution of false material: a person ‘guilty of a corrupt practice who, with the intention of influencing the vote of any elector, at any time on polling day before the close of the poll, or at any time on any of the 2 days immediately preceding polling day, publishes, distributes, broadcasts, or exhibits, or causes to be published, distributed, broadcast, or exhibited, in or in view of any public place a statement of fact that the person knows is false in a material particular.’[68]

Support for the South Australian model

3.64Inquiry participants were generally supportive of the South Australian model and suggested adopting a similar system nationally.[69] Many suggested that existing laws at the state/territory level (that is, SA and the ACT), provided a good starting point in developing federal laws.[70] It was noted that such a model does not aim to prevent or limit the expression of contested opinions, and there are still ‘robust, contested elections.’[71]

3.65Several submissions highlighted the South Australian model, which makes it an offence to authorise or publish electoral advertisements that are inaccurate and misleading[72]. Monash University and The Greens both suggested that there could be a federal law modelled on the South Australian provision, detailing that there be no authorisation or permit of electoral matter if the statement is purporting to be of fact and the statement purporting to be a statement of fact is misleading or deceptive, or is likely to.[73] DIGI also asked the Committee to consider including a clause that it is an offense of misleading electoral advertising where (a) the person disseminates, or authorises the dissemination of, an advertisement containing electoral matter; and (b) the advertisement contains a statement purporting to be a statement of fact that is inaccurate and misleading to a material extent.[74]

3.66The University of Canberra’s News and Media Research Centre (NMRC) were supportive of adopting the South Australian model with the view that it would:

… send a strong signal and it does put up some guardrails around the extent to which people can lie. I think it could limit some of the more extreme forms of lying. One that I theorised with a colleague in particular is ‘strategic lying’. Lying has become a very disturbing and advanced spin technique, and truth in political advertising laws could help bring that back a bit. So I would be very strongly in favour of us introducing that federally.[75]

3.67Professor George Williams highlighted the South Australian model, arguing that the Parliament should enact ‘a narrowly drawn law for truth in political advertising’ which ‘should only target the spread of information that can be proven to be false’:

There is a well tested model for achieving this. South Australia has prohibited electoral advertisements setting out statements of fact that are ‘inaccurate and misleading to a material extent’ since 1985. A person can be fined $5000 and corporations $25,000 for doing so. The South Australian Electoral Commission can request the withdrawal of advertisements that breach this standard and the publication of a retraction to correct the public record. Violations can also be taken to court. The South Australia law is an important disincentive to politicians spreading falsehoods during state elections. It has been used to good effect.[76]

3.68The Australia Institute was also supportive of the South Australian regulation but noted the limitations to which the legislation was able to be applied:

The South Australian model is really limited to advertising, which in practice is a bit broader than traditional paid advertising but still really requires a kind of fixing of the material in a published form, as far as I know. I think the beauty of that model is that it covers material that people have time to deliberate on, that’s probably been through formal processes, so it’s easier to justify having penalties for making a mistake or making an error of fact. It gets harder when someone might get caught making an off-the-cuff statement innocently and be covered that way. I think it would be tricky, partly because of the implied constitutional protections, to regulate speech more generally.

3.69They also observed that, as noted by the ECSA, the time it takes to make a determination of whether an individual or organisation had breached the provision can be challenging, especially in the final days of a campaign:

The other side of it too is that South Australia’s model has in effect worked by requiring the withdrawal and retraction of misleading ads, and an ad’s damage is done in the course of an election campaign. If it comes out in the last week, there’s very little time to stop it and address it. But there is also the option for fines, and that can have the deterrent effect, which gives you as long as you need to decide whether there should be a fine and what amount it should be, rather than it all being focused on the rush of an election campaign.[77]

3.70Marque Lawyers highlighted that a legislative model based on the South Australian approach would be an important step in ‘reviving the integrity of Australia’s electoral campaigns’:

Whilst ideally reform would go further in prohibiting conduct which is misleading or deceptive rather than just prohibiting conduct containing statements of misleading fact, the latter is an excellent starting point. We recognise that by creating a provision which is too broad, it risks not only constitutional invalidity but also creates a potential chilling effect on new political participants and deployment of the law for strategic advantage.[78]

3.71The Democratic Audit of Australia (DAA), while noting ‘arguments for and against the regulation of truth in political advertising and about remedies and processes’, held that ‘at a minimum the South Australian model offers a model’. Like other witnesses, they suggested that ‘It means at least setting a standard for campaign discourse, in the same way that a parliamentary code of conduct can set a standard, despite the complexities of implementation’.[79]

3.72While the SA model was broadly supported, some witnesses advocated for amendments which could be made to strengthen the framework for application at the federal level.[80] Professor Williams, for example, proposed that penalties could be stronger:

There’s too high a risk with the South Australian law that falsehoods will be just seen as a cost of campaigning—pay a fine but win the election. I think we do need to deal with more deliberate and what might even be malicious actions that amount to political lies. It’s possible we should look to criminal sanctions in that case, or at least much, much higher fines.[81]

3.73The AEC also discussed the challenges in introducing similar legislation to South Australia at the federal level and, in particular, the additional burden it would place on their resources:

The model that’s previously been spoken about in this committee, or has been raised with the committee, is the South Australian legislation. I think they’re the only electoral management authority in Australia, or even New Zealand, that has some sort of truth-in-advertising responsibility. I’d point out that the scale of a state election is tiny compared to what we do federally, and the sheer volume of issues that arise federally at election time would require quite a large support team to look at that. There would also be an expectation from all of the candidates and parties that we be very swift with our responses, because something would be said like, ‘We need this ruling right now.’ At the last election, there were over 1,600 candidates, a large number of parties and multiple contests. It’s complex and difficult. I haven’t put an exact figure on how many people, but there would need to be, particularly at election time, a significant team providing a very swift response. It would be complex, big and not cheap.[82]

Government’s role in truth in political advertising

3.74It is clear from the discussion above that is it important to protect voters from dishonest electoral communications. A central question to be considered is the role of the Australian Government in addressing truth in political advertising, including whether to strengthen existing rules or introduce new means of oversight. Evidence to the inquiry strongly suggested that the Australian Government should take action, and it is clear that there are successful models which could be employed to address some of the challenges presented.

3.75The Committee received many proposals for what rules should be introduced, how they should be enforced, and what an oversight framework would look like in practical terms. Submitters to this inquiry were primarily of the view that there are three government agencies which are best placed to oversee safeguards against harms from the spread of dishonest electoral communications:

• the Australian Communications and Media Authority (ACMA);
• the Australian Competition and Consumer Commission (ACCC) and
• the Australian Electoral Commission (AEC).

Current roles of existing agencies

Australian Communications and Media Authority

3.76The ACMA ‘is the independent statutory authority responsible for the regulation of broadcasting, radiocommunications and telecommunications in Australia’ which also includes some aspects of online content advertising.[83] It ‘regulates email spam and telemarketing and oversees the voluntary efforts of the Australian digital platform industry to address harmful online mis- and disinformation.’[84]

3.77The ACMA currently oversees the Australian Code of Practice on Disinformation and Misinformation which includes:

• assessing signatories’ transparency reports
• examining how signatories handle user complaints
• encouraging more platforms to sign up to the code.[85]
  78. ACMA also regulates the broadcasting sector in Australia, including commercial and community radio, and free-to-air and subscription television to ensure compliance under their obligations set out in broadcasting codes of practice, which are developed by industry and registered by the ACMA under section 123 of the Broadcasting Services Act 1992.
  79. The ACMA has the power to investigate in certain circumstances when a complaint about an obligation under a broadcasting code has been made, the broadcaster has either not responded or the response is inadequate, and a complaint is then made to the ACMA.[86] The ACMA investigates complaints regarding accuracy, fairness, impartiality, viewpoints, decency, classification, and harm and offence.[87]
  80. When assessing whether or not particular content is factual (and in particular, accurate), the ACMA considers a number of factors including:

• distinguishing between factual material and other material, such as opinion, which ACMA notes can be a matter of fine judgement
• all contextual indicators (including subject, language, tenor and tone, and inferences that may be drawn)
• the natural and ordinary meaning of the language used
• the use of language
• the identity of the person making a statement (whether as interviewer or interviewee) will often be relevant but not determinative of whether a statement is factual material.[88]
  81. The ACMA elaborated on the process they use for analysing content and the challenges in assessing whether content is factual or not:

We have a fairly rigorous process that we go through to determine whether content is factual material or whether it amounts to commentary or opinion … We look at a number of features … around whether or not there are assertions that can be tested and actually checked or whether they are subjective or open to interpretation et cetera. Having said that, even when we go through that process, it can be very tricky to unpack when someone is making an assertion of fact. Also, I think it’s fair to say that, when you get into areas where there is contestability around particular facts, it is particularly difficult to actually come to a decision in some cases about whether something is in fact accurate or not. It’s not a straightforward exercise. We do it and we do it in relation to all of our investigations, but it is complicated.

It’s also made quite tricky by omission of facts. Yes, you can put some facts on the table and those facts could be accurate but if you are omitting other facts it then becomes misleading. One of the challenges that we then have is, is that inaccurate because it is misleading, or is it partial? We do have a situation where sometimes we say because those facts were omitted then this has been, in colloquial terms, you would call a biased portrayal of the information. It is not straightforward and it is not easy, and making those judgements are hard to do quickly.[89]

3.82The Government recently announced that it would introduce legislation to expand the powers of ACMA to ‘hold digital platforms to account and improve efforts to combat harmful misinformation and disinformation in Australia.’[90] The new powers include:

• information-gathering and record-keeping powers to create transparency around efforts by digital platforms to respond to misinformation and disinformation on their services
• the capacity to register an enforceable industry code and to make a standard, should industry self-regulation measures prove insufficient in addressing the threat posed by misinformation and disinformation.[91]

Australian Competition and Consumer Commission

3.83The ACCC is an independent Commonwealth statutory authority responsible for enforcing the Competition and Consumer Act 2010, protecting consumers, promoting competition, fair trading and regulating national infrastructure.[92]

3.84The ACCC provides general guidance to businesses and consumers on how to avoid false or misleading claims, it accepts reports about any such claims, and if a business misleads, they can investigate and may take some form of compliance or enforcement action.[93]

3.85The ACCC advised that during the course of a year, after filtering hundreds of thousands of referrals, they may investigate between 60 and 80 matters depending on complexity, and assess:

… the seriousness of the conduct, the impact on the economy and also the ability to prove our case in court—ultimately, how well the evidence stacks up. Concern in a political framework would be where we make that assessment and, if we take on one complaint but not another party’s complaint or another political perspective, it will obviously result in calls of bias and the like, which when we are dealing with corporations is a consequence that in this realm would be quite concerning for an organisation that has to be apolitical.[94]

3.86Other factors they consider include the extent, breadth and nature of harm that is being experienced, whether it involves imminent or continuing harm which would determine the speed or manner in which the ACCC pursue it.[95]

3.87When investigating allegations of misleading claims, there are a number of stages and timeframes:

We get leads and information through a number of sources. We do get reports from the public and we triage those. We have a further process of setting our priorities each year, which is based on input from a broad range of stakeholders. Through that process we identify areas that we can be responsive to or proactively engage with, and we’re also able to pack up matters that are public in their nature, either through media reports or other forums such as references in social media. We have a broad range of matters and ways of getting those matters, but we ultimately don’t operate as a complaint-handling agency. We very much seem to be a strategic enforcer to deliver the greatest impact in the marketplace and deterrence.[96]

3.88The ACCC acknowledged that while they have ‘a very clear understanding about what misleading and deceptive conduct or false and misleading representations constitute’, it is often about a commercial relationship between consumers and traders rather than assessing information in political debate.[97]

Australian Electoral Commission

3.89Currently the AEC has established a multi-faceted approach to managing misinformation and disinformation which includes:

• a Reputation Management Strategy - establishing an online footprint for the AEC and focusing on the AEC being considered to be the experts on electoral matters in Australia
• developing an online presence
• working with social media companies to remove misinformation and disinformation
• briefings in every state and territory with media groups and interviews by the AEC
• Electoral Integrity Assurance Taskforce – a multi-agency vehicle
• Stop and Consider campaign – to stop and consider the source of information
• establishment of an online disinformation register.[98]
  90. The AEC collaborated with a number of online platforms to reduce the risk of disinformation:

In preparation for the 2022 federal election, the AEC engaged with online platforms to protect and promote electoral integrity online. A written agreement reflecting these efforts was finalised between the AEC, Meta, Twitter, Google, Microsoft and TikTok. This agreement established a framework for detailed operational arrangements allowing the AEC and the Taskforce to refer harmful electoral content to online platforms for consideration and removal, where content was in breach of relevant legislation or the platform’s own policies.[99]

‘Stop and Consider’ campaign

3.91A campaign aimed at voter education to cut through misinformation, disinformation and spin was launched on 12 April 2022 online via the AEC’s social media feeds and through digital displays. This ‘Stop and Consider’ campaign encouraged voters to consider the information they received on the 2022 federal election, and whether it is:

• Reliable: Is the information from a reliable source?
• Current: When was it published?
• Safe: Could it be a scam?[100]
  92. The campaign ‘got 94 million digital and social ads displayed’ and ‘100,000 click-throughs to the AEC website from people looking at that Stop and Consider information.’ Research undertaken by the AEC after the election ‘showed that one in five Australians recognised that campaign, and a large number of them also acknowledged that it changed their behaviour with how they engage with online material.’[101]

Disinformation register

3.93On 7 March 2022 the AEC launched a disinformation register – ‘a searchable database of mistruths the AEC has identified about Australian election processes.’[102] The register contains ‘each piece of disinformation the AEC has discovered’ and ‘the factual information regarding the matter and AEC actions taken to correct the record.’[103] Thirty-one items of disinformation on election timing, voting technology, counting, political neutrality, election validity, indigenous participation, postal voting, formality, preferential voting, COVID safety measures, and electoral communication were included on the register during the 2022 federal election.[104]

Authorisation of political campaign material

3.94This section focuses on issues around the authorisation of political campaign material and more recent concerns of paid electoral advertisements. As with many of the areas considered in this report, these matters have been well canvassed in earlier reports of the Committee, and in the public arena.

3.95The authorisation of political campaign material was an issue considered in the Committee’s report into the 2016 federal election, with consistent themes such as the use of correct factual content, authorisation and distribution of ads, and transparency around these requirements.

Current authorisation rules – progress with 2017 and 2019 legislation

3.96The Committee has previously looked into various matters around the authorisation of political campaign material; as a result in 2017 the Parliament passed the Electoral and Other Legislation Amendment Act 2017. This Act amended and broadened the authorisation requirements in the Electoral Act to apply to all forms of electoral communications, and at particular times. In 2019 the Parliament passed the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018, which ‘made further amendments to the authorisation requirements to clarify what communications will be electoral matter.’[105]

3.97As noted earlier, under the Electoral Act, the AEC does not regulate truth in electoral advertising.[106] The current rules require people and entities who are communicating paid electoral advertising toauthorise those communications to enable clarity for electors to determine responsibility[107]. There are specific rules in the Electoral Act that must be used in authorised printed communication and also for communications other than printed, and communication broadcasting by television and radio. The Electoral Act includes guidelines around: where the particulars must be notified, formatting and placement and language requirements[108], e.g. for print communications, the authorisation must be a size that is able to be read and must not be obscured[109].

3.98The Broadcasting Services Act 1992 (BSA) requires a relevant authorisation tag for radio broadcasting in relation to political advertisements. Commercial Radio Australia told the Committee that for radio broadcasters reviewing political advertisements to ensure they include these tags ‘is already a fairly onerous process’.[110] Commercial Radio Australia argued that no further obligations should be placed on broadcast licensees. The party or candidate authorising the advertisement is expected to ensure that the advertisement complies with all relevant laws.[111]

3.99If a licensee broadcasts political matter at the request of another person, the licensee must ensure that authorisation details (called ‘required particulars’) are announced (subclause 4(2) of Schedule 2 to the BSA).

3.100The content of the required particulars is specified in the BSA (subclauses 1(2) and 1(3) of Schedule 2) and subsection 321D(7) of the Commonwealth Electoral Act 1918 (Electoral Act) and must be placed in a broadcast in accordance with the requirements in sections 14 and 15 of the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021.

3.101The ACMA noted that, both during and outside of election periods, broadcasters have ongoing obligations regarding the identification or ‘tagging’ of certain political material. Whenever a television or radio licensee broadcasts ‘political matter’ at the request of another party (such as an election ad paid for by a political party), a tag (known as the ‘required particulars’) must immediately follow the communication. The required particulars must identify the source of the political matter (such as the political party), the name of the person who authorised it, and be spoken in a manner that is intelligible to the relevant audience.

3.102These requirements, which are enforceable by the ACMA, are designed to allow for reasonably balanced access to differing political opinions during an election campaign, while providing ongoing transparency to audiences about who is trying to persuade them or influence their vote.

3.103Ahead of the 2022 federal election, the ACMA updated the guidelines to reflect recent legislative changes and provide licensees with greater clarity as to the scope of their obligations when broadcasting political and election matter.

3.104During the 2022 federal election campaign, the ACMA received no complaints about tagging and no complaints about broadcasters failing to provide access to political candidates, or evidence of potential breaches of advertising restrictions by commercial TV broadcasters.[112]

Strengthening the authorisation rules

3.105The Committee received evidence with a range of views on strengthening authorisation rules. Some of the concerns that the Committee received were around the authorisation of misleading or deceptive campaign advertising and some solutions around what could be done to regulate these. Other matters related to the AEC with concerns around the regulatory involvement from the AEC, lack of power from the AEC, and some witnesses’ frustration over the lack of definitions and guidance.

3.106The Commonwealth law makes it illegal for a person to ‘publish, permit or authorise to be published during the relevant period any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote’[113].

3.107The AEC investigated 826 complaints about electoral communications between the issue of the writ and election day.[114]

Source: Australian Electoral Commission, Submission 330, p. 9.

3.108The AEC advised that most of the complaints were in relation to breaches of the Electoral Act, which sets out electoral communication authorisation rules. They added that a significant number of the complaints were related to section 329 of the Electoral Act, which regulates misleading and deceptive electoral communications. However, the print media comprised the majority of electoral communication types which were subject to complaints (56 per cent).[115]

3.109A witness told the Committee that they believe there are still gaps in the Commonwealth law.[116] Marque Lawyers highlighted the Garbett v Liu case which came to light from the 2019 federal election, where signs were found by the court to be misleading or deceptive. The Committee notes the claim that while this case restored some of the power of s 329, it has also ‘opened the door for a broader range of conduct to breach the prohibition’.[117]

Whilst the effect of Garbett has been to edge the dial back to cover a broader range of conduct, there is still a range of conduct which is not simply ‘political hurly burly’ but which actively seeks to mislead voters and is permitted.[118]

3.110The Committee also heard from several inquiry participants who felt that authorisation rules should be addressed by the AEC, and that the AEC should hold power and authority to do so.[119] The Committee notes the mention of the Garbett v Liu case and concern that the AEC were powerless to act on removing signs and ‘had no real authority,’[120] and further that evidence suggests there is some confusion around the authorities conferred under s329 of the Electoral Act.[121]

3.111The AEC told the Committee that electors have expressed frustration around the current scope and purpose of section 329, and the role the AEC plays in regulating truth in electoral advertising. The AEC also said there were complaints that it lacks clarity, making it difficult to enforce.[122]

3.112Marque Lawyers suggested that a suite of Electoral Commissioner tools be implemented to empower the Commissioner to be able to deal with suspicions on inaccurate material. This would allow the Commissioner to deal with situations where there is a lack of resources to investigate or take immediate action. There was also suggestion that the AEC could publish notices to their website so that the public is aware of any inaccuracies.[123]

3.113The Human Rights Law Centre (HRLC) recommended that the Committee create a new body that is independent, efficient and expert in making determinations. Alternatively they suggested that if this wasn’t possible they ask the Committee to consider different enforcement mechanisms be made available to the AEC. Some of these could include empowerment to make a ‘show cause notice’ and also be given sufficient funding to assist with addressing the high volume of complaints received[124].

3.114The AEC informed the Committee of complaints that the AEC were not achieving outcomes and that reforms could be made to enable the AEC ‘necessary powers to investigate complaints and gather sufficient evidence for the ability to enforce the statutory regime in a more timely manner’.[125]

3.115Numerous witnesses suggested establishing a pre-registration system or database for participants proposing to display signs or communicate material[126]. Marque Lawyers told the Committee this could prevent some of the misconduct and any material that was not registered could be removed by the AEC, without having to engage in a subjective assessment.[127]Mr Mark Yore suggested all advertising be submitted to the AEC to receive an automatic lodgement number:

… requiring that detail to be part of the ad no matter what the media. This is essentially an extension of the process for authorisation of material such as how-to-vote cards. A copy of this material would then be easily accessible to anyone who wants to look at it. Additionally, all supporting material would form part of the lodgement, allowing for robust discussion. This would also highlight claims that have no substance and are made of nothing but assertions.[128]

3.116In its submission, the AEC noted concerns from complainants that key concepts relating to authorisations such as ‘genuine editorial content’ and ‘electoral advertisement’ lacked definition in the Electoral Act.[129] The AEC explained that electors claim there is a lack of guidance in relation to promotional materials in polling places.[130]

3.117The Committee notes discussion about the need for campaign material to be legible, given the distance they might be seen from.[131] Electoral communications should:

… have an authorisation that takes up the entire screen of visual media, spoken at regular conversational pace, at the same volume, at a print size that is readable from a seat in a regular lounge room, and that states emphatically who and/or what party is communicating, who and/or what party is paying, and who they are endorsing or opposing.[132]

3.118The issues around the authorisation of campaign material is evolving and becoming more prevalent with the rise of social media platforms, and has caused regulation complexities around the authorisation of online political campaign material. This is further supported by the ACT Government’s submission:

… any approach to reform needs to be flexible enough to adapt to a constantly changing social media and technology landscape, and must acknowledge that social media posts can be shared very broadly in short periods of time, at times without links of the original poster.[133]

3.119The Liberal Party told the Committee that the AEC should continue to improve the quality of its communications and advice in relation to the authorisation regime that it administers. The ways of improving the application of the regime is through predictability and consistency while also maintaining communication that is clear and understandable.[134]

Paid for by authorisation

3.120The AEC commented that there were concerns over the rise of paid advertorials, and question around genuine editorial content and proof of paid advertising.[135]

3.121The Committee received evidence from various witnesses broadly in favour of authorisation statements on electoral advertisements and that they are required to include detail of who paid for them to enable them to be regulated.[136] The AEC further supported this evidence and said ‘that this is crucial in terms of regulating the statutory scheme’[137].

3.122Reset Australia recommended that legislation be introduced to require that authorisation statements on electoral advertisements be expanded to include the person who paid for them, with identity verification of these people undertaken by ‘platforms and publishers.’[138] Mr Chris Cooper, Executive Director, Reset Australia said that:

… this would help voters better understand not only who has authorised the ad but who is funding it. That’s particularly important as we see the rise of different campaigning organisations on all sides, who often coordinate or are funded by politically affiliated operatives.[139]

3.123The Committee heard a similar recommendation asking the Committee to consider implementing a requirement for disclosures identifying political advertising, and that it should include all social media and narrowcast platforms, including forms of native advertising or sponsored content (such as influencer content).[140]

3.124Meta told the Committee that they have updated their policies to increase transparency and now require a number of steps from advertisers to confirm their authenticity. Advertisers must not only be authorised by Meta but also must include a ‘paid for by’ disclaimer prior to running an advertisement. Meta told the Committee that they rejected 17,000 ads during the Australian election campaign for not complying with these rules.[141]

3.125However the AEC Electoral Commissioner Mr Tom Rogers acknowledged that advertisements on social media platforms are complex, and with

… implied freedom of political communication it makes it is very difficult to regulate. And you can go too far here, too, and it can have a chilling effect on the ability of citizens to express themselves at election time.[142].

3.126The AEC said they have looked at many examples of TikTok videos and that social media is more difficult in getting evidence of content that’s been paid for.[143]

3.127Climate 200 recommended that the AEC be empowered and resourced to examine and remove unauthorised electoral materials[144].

3.128Mr Travis Jordan suggested an alternative approach that ‘If this is too much of a logistical challenge or too much of an imposition on the implied freedom’[145], a searchable database of distributable material could be created before the polling period begins, as suggested by the DAA in their 2019 submission[146].

3.129Professor Luke Beck commented that authorisation statements are required to be put on paid electoral advertising which includes posting to Facebook, TikTok or Twitter accounts:

My view is that these deceptive and misleading advertising laws should apply to that just as much as a paid ad in the newspaper or a billboard or an ad on radio. There’s no reason why these rules should apply differently, whether or not you’ve paid for the ad or just posted it on your TikTok at no expense to yourself.[147]

3.130The AEC highlighted that the Electoral Act currently exempts satirical content, but, if it’s paid content, so becomes paid advertising, then it is subject to the Electoral Act and the authorisation requirements.[148]

3.131Accountability Round Table expressed their concern of complexities around ‘microtargeted political advertising’ and the multiple difficulties this would present to the regulator.

The sheer volume of advertising and its multiple platforms for distribution, including micro-targeted digital advertising that it is effectively hidden from general view, makes it difficult to find all the advertising material on which it might be necessary to arbitrate.[149]

3.132The Accountability Round Table also made comment that it was ‘unrealistic to expect a single government agency to take this on and even with a staff of thousands and an unlimited budget, it would be an ongoing headache’.[150]

New options for government

3.133Inquiry participants proposed a variety of options (individually or in combination), which could help protect truth in political advertising and deal with misinformation and disinformation:

• appointing a regulator, or establishing a regulatory framework, including consideration of oversight of advertising;
• imposing sanctions or fines, including on individuals and media companies; and/or
• establishing media literacy programs.

A regulator and/or a regulatory framework

3.134Several submitters recommended appointing or establishing a regulator or regulatory framework to assess purported statements of fact. There were widely different views as to where this function could or should be performed, and whether by, or within, an existing agency such as the AEC, ACCC or ACMA.

3.135There were also various views as to the range of powers and actions which could be taken, for example:

• that the AEC be ‘resourced to act immediately on reports of misleading political advertising’ and ‘empowered and resourced to examine and remove unauthorised electoral materials.’[151]
  136. The HRLC advocated for creating ‘a new body that is independent, efficient and expert in making determinations.’ However, in lieu of a new agency, they suggested the AEC be granted additional powers:

However if that [a new independent body] cannot be achieved, we believe some careful consideration of different enforcement mechanisms made available to the AEC would assist. For instance, if the AEC were empowered to issue a “show cause notice” to someone who had published material which prima facie appeared inaccurate or misleading, the burden could then shift to the publisher to provide source material or otherwise justify the statement of fact. If the AEC were dissatisfied with the response, it could, like the ECSA, request a retraction or withdrawal, but compulsory orders to do so could only be made by a federal court.[152]

3.137The Australia Institute pointed out that polling indicated that the Australian community were supportive of having the AEC as regulator. They stated that they believed the AEC was a good candidate[153], noting:

That's how it's done in South Australia, and it has worked very well. In fact there's an FOI request we received which shows that ECSA, the South Australian commission, says one reason they haven't been able to get someone else to do it is that everyone thinks the commission there does a good job. They have this understandable concern that they want to be seen as independent, but they can do that while still fulfilling this role and ultimately it's parliament's decision to make rather than the commission's. Some alternatives have been suggested, including the ACCC, or in one case an academic proposed that you could have a panel of former politicians, with the idea that they know what's beyond the pale when they see it. Our polling found that was less supported than having the commission do it, but it certainly shows you have options.[154]

3.138Professor Beck advocated for ‘federal ‘truth in political advertising laws’ along the same lines as exist currently in South Australia and the Australian Capital Territory.’[155] In line with the state and territory legislation, Professor Beck recommended that the AEC should be the designated regulatory body.[156]

3.139A few submitters were not supportive of having the AEC regulate truth in advertising laws. Dr Kevin Bonham commented that general truth in advertising legislation not be administered by the AEC ‘in order to preserve the AEC’s independence and ensure that the AEC is not distracted by a need to develop broad expertise in the judgement of the truth of political claims.’[157]

3.140Dr Colleen Lewis believed that the AEC did not have that existing skill base and capability to regulate truth in political advertising and if they were to be the responsible body they would need proper resourcing[158]:

They're going to need a lot of funding if they are to do it, and I think it's incumbent on the parliament, if it decides the appropriate body is the AEC, to make sure they're adequately funded.[159]

3.141The Australian Greens called for the AEC to be provided additional resourcing if it were to be assigned that role.[160]

3.142The DAA agreed with Dr Lewis’ view that the AEC currently did not have the existing skills base, stating that they did not believe they should be the regulator believing that administering any laws would erode the public’s trust in the AEC’s ability to remain impartial:

I would strongly support the view of the AEC that they should not be involved in this exercise. It’s not something in which they have a developed skill at the moment, so they are not in that sense the obvious regulator, but I think the more important point is that, as was flagged in the earlier discussion, there’s an awful lot hanging on public trust in our election administration bodies. We see in other countries now the consequences of that trust falling away. If the AEC were to be involved, the latent objective of that would be to draw on the reserves of public trust in the AEC to give credibility to the process of administering the truth-in-advertising laws. The risk is that the flow would be the other way and that the challenges of administering the laws would poison the public trust in the AEC.[161]

3.143Senator Pocock voiced his concerns about ‘putting the Electoral Commissioner in the position of determining truth in advertising [as it] has potential to undermine their credibility as an impartial actor.’[162]

3.144Professor Tham suggested the issue be looked at differently, noting that the AEC would only be making determinations on political advertising retrospectively:

You make a statement that is purportedly false, and then there's basically enforcement proceedings and so forth. I would encourage the committee to think about ex ante measures. By this I mean political parties and candidates having a certain code to ensure the veracity of the statements they make. For example, before a political ad goes up, you might have the party secretary sign it off and say, 'I'm satisfied to the best of my endeavours that this statement is true.' Then there would be a process to back that up, and, if they deviate from that process, you could have a certain set of consequences, including the reduction of public funding. I think the Australian Electoral Commission could quite easily police that, because you are not policing whether the statement is true or false but whether the parties or candidates have followed very specified procedures.[163]

3.145While supportive of establishing truth in advertising laws, the AEC stated that they wished to remain non-partisan and therefore should not be the arbiter of truth:

In terms of truth in advertising, any involvement of any electoral administration body, I think, runs counter to the principles of neutrality and non-partisanship. The moment the commissioner makes a ruling about a fact, that someone said, you’re alienating a large proportion of the population, because at election time, in particular, it’s a contest of ideas. One’s person’s fact is another person’s falsehood. I think there is a role for some form of truth in advertising, and I wish every success to whoever is doing that, but I prefer not the AEC to be the organisation involved in that process.[164]

3.146The AEC also highlighted the significant additional administrative burden that would be placed on them if they were to have responsibility over truth in advertising laws.[165] They were however cognisant of electors’ frustrations over the AEC’s current ability to investigate complaints:

However, a significant number of complaints [during the 2022 Federal election] also related to section 329 of the Electoral Act, which regulates misleading and deceptive electoral communications. … The current formulation of section 329 of the Electoral Act (misleading and deceptive publications) lacks clarity, making it difficult to enforce. Electors expressed frustration at the current scope and purpose of section 329, and the Electoral Act’s role in regulating truth in electoral advertising.

Electors frequently appeared to want more regulatory involvement from the AEC to achieve outcomes. Reforms could be made so the AEC has the necessary powers to investigate complaints and gather sufficient evidence for the ability to enforce the statutory regime in a more timely manner.[166]

3.147The ACCC was also put forward as a possible regulator as they already have experience in regulating under other federal deceptive and misleading conduct laws. Professor Beck stated that if the ACCC ‘were to take this on then it’s really just a very modest expansion of their existing remit for deceptive and misleading advertising laws. I think that would also be a workable regulator.’[167] Professor Beck elaborated on the reasons why the ACCC would be an appropriate regulator:

It has a mandate to deal with other deceptive and misleading advertising laws in the commercial advertising context et cetera, so they’re possibly the ones with the existing skill base to take this on. You wouldn’t have to create a new capability and capacity. In fairness, the AEC does not have that existing skill base and capability to do that. So there are questions about perceptions of being partisan and political, but there’s also a more practical consideration that they don’t have the experience and skillset and people yet to deal with it, whereas if the ACCC were to take this on then it’s really just a very modest expansion of their existing remit for deceptive and misleading advertising laws. I think that would also be a workable regulator.[168]

3.148The ACCC did not however believe that they were the appropriate agency to regulate political advertising laws, stating that it would impact on their effectiveness as regulator of competition and consumer issues:

We are not really focused on political debate. There is a long line of precedents that assist with determining the line between the two. We’re happy to talk about those as questions arise. We pick up the submissions and the areas of topics, as we have in the past, suggestions that the ACCC or our legislation might seek to deal with those issues. It would, with respect, have a significant impact on the clarity of our role and draw the independent champion of competition and consumer issues into political matters, which we think would impact our effectiveness.[169]

3.149The ACCC added that they currently operate in the judicial system and are not the arbiter of what is misleading or deceptive, noting that there was ‘quite a difference in terms of roles, mandates and missions between regulating the marketplace and becoming involved in matters of political discussion, and we think that it’s not a good transition or role for an agency such as the ACCC.’[170]

3.150The HRLC suggested the AAT as another alternative for enforcing a prohibition on inaccurate and misleading electoral matter. They did note some concerns that ‘any decisions regarding electoral matter [made by the AAT] would risk worsening trust in elections rather than improving it.’[171]

3.151The AEC proposed ACMA as the repository of any new truth-in-advertising powers.[172]

3.152Several submitters recommended establishing an independent regulator or external review process. The Australian Greens suggested establishing laws to address misleading political advertising through an ‘independent, external review process to evaluate complaints, with rapid adjudication and a clear appeals process.’[173]

3.153Reset Australia suggested establishing a Key Performance Indicator (KPI) reporting regime:

That the government work with ACMA, DIGI and the signatories to “The Australian Code of Practice on Disinformation and Misinformation” to establish a standard KPI reporting regime that would provide comparison and a broad overview of the mis- and disinformation environment in Australia. This should be informed by, and comparable to the European Union’s Disinformation Code.[174]

3.154Senator Pocock endorsed the ‘joint statement released by 16 civil society organisations, including the HRLC, Transparency International Australia and the Australian Council of Social Services, in the lead up to the 2022 election that any laws should be enforced by a well-resourced independent regulator.’[175]

3.155DIGI expressed the view that while truth-in-political-advertising laws would fill a gap, ‘truthfulness of a political advertisement is best determined by an independent regulator or a courtrather than by advertising services providers, who rarely have that sufficient information to assess the accuracy of statements and questions.’[176]

Fines or other sanctions

3.156A few submitters suggested that the current penalties or fines at the state level would not act as a deterrent if established at the federal level.[177] As noted above, Professor Williams suggested looking at much higher fines or criminal sanctions.[178]

3.157The Australia Institute suggested that fines could have a deterrent effect adding:

One option would be to have fines that are at some level proportionate to the level of the advertising campaign, and that way you’d capture, firstly, an ad that’s done more harm than another ad, but also roughly the resources available to one party or candidate versus another.[179]

Improving media literacy

3.158Evidence received as part of this inquiry showed a need to improve the public’s media literacy as one mechanism to combat misinformation and disinformation. The AEC’s Stop and Consider campaign, outlined above, is an example of this.

3.159The Australian Media Literacy Alliance (AMLA) noted that overall levels of civic participation are low, with four out of ten Australians (39%) having not undertaken any of the seven activities including keeping up to date on politics, following a party or politician and commented on policy issues online in the past 12 months.[180]They added:

Most Australians have had access to very few sources of media literacy support in their lifetime … Almost half of adult Australians have had access to no source of support (30%) or access to only one source of support (17%) to help them to access, use, understand and create media across their lifetime based on the list of eight sources of support we provided [including ‘family’, ‘online resources’ and ‘friends’].[181]

3.160The ABC noted it was important to direct users to authoritative sources of information such as RMIT ABC Fact Check.[182] Meta advised that they have taken steps to increase transparency through their publicly available Ad Library and both Meta and Google provide databases which can be searched by members of the public.[183]

3.161The Australian Greens commented that the ‘question of truth in political advertising needs to be balanced with increasing civic literacy and critical thinking.’[184] DIGI also argued that improving digital media literacy is an effective way to combat misinformation and disinformation.[185]

Public archive of advertisements

3.162Multiple witnesses suggested that publicly available archive of all political advertisements would be an important step for transparency.

3.163Reset Australia called for an ‘enforced, comprehensive library of the political ads being run on the platforms’:

That means having detailed information about how each is being targeted. It’s really understanding that, if there is a candidate who is running ads in different parts of their electorate or in different parts of the country, we should be able to see how that’s being targeted. That sort of access should be provided in ways that are useful to analysts. Rather than having a clunky, manual platform, providing things like an API access to the ad library would help to speed up that analysis. It could be done in real time by those analysts. Of course, this should apply to all platforms.[186]

3.164Senator Pocock stated that ‘digital ad libraries which allow people to see what ads political parties are running and where are part of the solution.’[187]

3.165The Australia Institute expanded on the benefits of an ad library in which electoral advertisements would be required to be submitted to a publicly accessible archive:

Then you’d immediately have information about the kinds of ads that parties and candidates are running, you’d have all the information there about what’s in the ad and you’d have that broader public scrutinywhere journalists and members of the public could look at everything that’s being put out. So that’s worth considering as well.[188]

3.166They added that there was an additional benefit in ‘requiring electoral advertisements to be submitted to a publicly accessible archive could help complainants or the commission locate an advertisement more quickly.’[189]

3.167Some submitters have proposed a public archive of other election materials, such as how-to-vote cards, in addition to electoral advertising. Mr Jordan suggested ‘that any material intended to be distributed or displayed at a polling place — including placards, posters, “how-to-vote” instructions and third party campaign “scorecards” — be lodged in a publicly accessible database at least a week before the start of the polling period.’[190]

3.168Mr Jordan noted that ‘most political parties have their how to vote instructions available online before the polling period starts already, so this would not be an administrative burden for most.’[191]

3.169The HRLC was of the view that providing how-to-vote cards to a regulator in advance of an election would provide time to assess their factual accuracy ahead of the election, ‘so you can’t weaponise these laws against opponents by asking for an injunction to stop people from handing out how-to-vote cards on election day, which we know is quite a common practice.’[192]

Committee comment

3.170Australia has some of the most secure and democratic elections in the world. However, democracy is under increased threat from rising public mistrust, including resulting from the proliferation of misinformation and disinformation. Digital platforms around the world enable the spread of mis-truths and half-truths online. Advances in technology are making it harder and harder for members of the public to determine what material is factual. Lies, misinformation and disinformation are spreading at an exponential rate.

3.171Elections in some of the world’s most established democracies have been severely impacted by this ongoing threat. The inability to establish whether information is reputable and reliable is steadily eroding trust in our democratic institutions.

3.172As noted at the beginning of this chapter, the High Court of Australia has held that the Commonwealth Constitution gives rise to an implied freedom of political communication. It also affirmed that laws relating to election integrity are legitimate in implied freedom cases providing that they reasonably serve a legitimate end.

3.173Action must be taken to combat the effects of misinformation and disinformation, but any action must be balanced, so that freedom of political communication is not inhibited or placed at risk. Legislative change must be for a legitimate purpose, proportional, valid and appropriate. Any changes to existing structures, institutions or legislative or regulatory frameworks must therefore be carefully considered.

3.174The Committee acknowledges that the Australian community has an expectation that the political communication that they receive is credible and factual. The majority of submitters who provided evidence to this inquiry on these issues recommended applying truth in political advertising laws to statements of fact as well as to authorised advertisements.

3.175While additional consultation may be needed on specific aspects at the Commonwealth level, it is clear that there are models, such as the South Australian legislation, that prove that additional regulation can be successful over time.

3.176The Committee notes the complexity of introducing truth in political advertising laws and the need to ensure any system still allows for freedom of political communication. Noting that some participants in this inquiry argued that too many questions would arise from the introduction of legislation regulating truth in political advertising, the Committee encourages the Government to ensure any legislation in this area to take into consideration all such concerns.

3.177It will take time to put an appropriate system in place and that any new system will need a substantial education and communication effort to ensure participants are aware of their responsibilities.

3.178Perhaps one of the most contentious aspects to consideration of truth in political advertising is who would be responsible for administering it. With this question having been put to many witnesses who have provided evidence to the Committee, on balance it appears that the AEC is the organisation that is best placed to do this.

3.179The Committee recognises the AEC’s hesitation in taking on responsibility for administering truth in political advertising. However, the experience of the South Australian Electoral Commission demonstrates that, while on a substantially smaller scale, an electoral commission can administer a system like this without compromising the respect in which it is held by political actors and the wider voting public.

3.180The Committee recommends that the Australian Government develop legislation, or seek to amend the Commonwealth Electoral Act 1918, to provide for the introduction of measures to govern truth in political advertising, giving consideration to provisions in the Electoral Act 1985 (SA).

3.181The Committee recommends that the Australian Government consider the establishment of a division within the Australian Electoral Commission, based on the principles currently in place in South Australia, to administer truth in political advertising legislation, with regard to ensuring proper resourcing and the need to preserve the Commission’s independence as the electoral administrator.

3.182The Committee acknowledges the complexities faced by possible administration of truth in advertising laws, and notes that a range of options have been proposed to establish a mechanism by which this legislation could be implemented and enforced. The Committee is impressed by the work being undertaken in South Australia.

3.183The Committee acknowledges the range of views presented in evidence as how such a body could be established, including whether a new institution should be created, or whether the duties could be undertaken following the expansion of the scope of an existing agency, such as the ACMA, the ACCC, or the Australian Electoral Commission. The Committee believes the appropriate body to administer this is the Australian Electoral Commission given its central role in administering elections. The Government should work with the Electoral Commissioner to develop the most suitable model and ensure it is appropriately resourced.

3.184The Committee recommends that, providing the Committee receives a reference to conduct a review of the next federal election, consideration of the new framework be included in terms of reference to the Committee. Such consideration could include the effectiveness of the revised arrangements, and identification of any further improvements.

Footnotes

[1]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

[2]Unions NSW v New South Wales (2013) HCA 58.

[3]Joint Standing Committee on Electoral Matters, Report on the conduct of the 2019 Federal election and matters related thereto, December 2020, pp. 75-84.

[4]Joint Standing Committee on Electoral Matters, Report on the conduct of the 2019 Federal election and matters related thereto, December 2020, pp. 110-113.

[5]Joint Standing Committee on Electoral Matters, Report on the conduct of the 2019 Federal election and matters related thereto, December 2020, pp. 87-90.

[6]Joint Standing Committee on Electoral Matters, Report on the conduct of the 2019 Federal election and matters related thereto, December 2020, p. 103.

[7]Joint Standing Committee on Electoral Matters, Report on the conduct of the 2019 Federal election and matters related thereto, December 2020, p. 123.

[8]Joint Standing Committee on Electoral Matters, Report on the conduct of the 2019 Federal election and matters related thereto, December 2020, pp. 110-113.

[9]Senate Select Committee on Foreign Interference Through Social Media, First Interim Report, December 2021, pp. 1-10.

[10]Democracy Matters, Submission 352, p. 3.

[11]Australian National University Law Reform and Social Justice Research Hub, Submission 354, p. 5

[12]Professor George Williams, Submission 7, p. 1.

[13]Australian Labor Party, Submission 363, p. 2.

[14]The Australian Greens, Submission 432, p. 1.

[15]The Australia Institute, Submission 412, p. 20.

[16]Dr Monique Ryan MP, Submission 414, p. 3.

[17]Ms Zali Steggall OAM MP, Submission 1381, p. 1.

[18]Ms Kylea Tink MP, Submission 417, p. 4.

[19]Mr Andrew Wilkie MP, Submission 387, p. 1.

[20]Liberal Party of Australia, Submission 382, p. 5.

[21]The Nationals, Submission 361, p. 3.

[22]NSW Nationals, Committee Hansard, 3 November 2022, p. 23.

[23]Professor Luke Beck, Submission 356, p. 4.

[24]The Canberra Alliance for Participatory Democracy, Submission 309, p. 3.

[25]Australian Communications Media Authority, Committee Hansard, 18 October 2022, p. 9.

[26]Professor Luke Beck, Committee Hansard, 17 October 2022, p. 3; Professor George Williams, Committee Hansard, 17 October 2022, p. 17.

[27]Australia Institute, Submission 412, p. 22.

[28]Real Republic Australia, Submission 401, p. 15.

[29]Real Republic Australia, Submission 401, p. 16.

[30]Australian Competition and Consumer Commission, Committee Hansard, 18 October 2022, p.30.

[31]Dr Judy Hyde, Submission 262, p. 2.

[32]Marque Lawyers, Submission 337, p. 1.

[33]Section 113(2), Electoral Act 1985 (SA).

[34]Electoral Commission South Australia, Committee Hansard, 30 November 2022, p. 1.

[35]Section 113(2)(a) and (b). Electoral Act 1985 (SA). If the offender is a natural person—$5 000. If the offender is a body corporate—$25 000.

[36]Section 107(5), Electoral Act 1985 (SA).

[37]Electoral Commission South Australia, Committee Hansard, 30 November 2022, p. 2; University College London, The Constitution Unit, Doing Democracy Better: How Can Information And Discourse In Election And Referendum Campaigns In The UK Be Improved?, March 2019, p. 22.

[38]Electoral Commission South Australia, Committee Hansard, 30 November 2022, p. 1.

[39]Electoral Commission South Australia, Committee Hansard, 30 November 2022, p. 2.

[40]Electoral Commission South Australia, Committee Hansard, 30 November 2022, p. 2.

[41]Electoral Commission South Australia, Election Report, 2018 South Australian State Election, p. 80.

[42]Electoral Commission of South Australia, Committee Hansard, 30November 2022, p. 5.

[43]Electoral Commission of South Australia, Committee Hansard, 30November 2022, p. 5; Section 108, Electoral Act 1985 (SA).

[44]ACT Electoral Commission, ‘Frequently asked questions - Inaccurate and misleading electoral advertising’, viewed 29 March 2023, <https://www.elections.act.gov.au/frequently_asked_questions/frequently-asked-questions-inaccurate-and-misleading-electoral-advertising>

[45]ACT Electoral Commission, ‘Frequently asked questions - Inaccurate and misleading electoral advertising’, viewed 29 March 2023, <https://www.elections.act.gov.au/frequently_asked_questions/frequently-asked-questions-inaccurate-and-misleading-electoral-advertising>

[46]Australia Institute, Possible, Practical, and Popular Opportunities for Truth in Political Advertising Laws in Australia, 25 October 21, p. 7.

[47]ACT Electoral Commission, ‘Frequently asked questions - Inaccurate and misleading electoral advertising’, viewed 29 March 2023, <https://www.elections.act.gov.au/frequently_asked_questions/frequently-asked-questions-inaccurate-and-misleading-electoral-advertising>

[48]ACT Electoral Commission, ‘Frequently asked questions - Inaccurate and misleading electoral advertising’, viewed 29 March 2023, <https://www.elections.act.gov.au/frequently_asked_questions/frequently-asked-questions-inaccurate-and-misleading-electoral-advertising>

[49]ACT Electoral Commission, ‘Frequently asked questions - Inaccurate and misleading electoral advertising’, viewed 29 March 2023, <https://www.elections.act.gov.au/frequently_asked_questions/frequently-asked-questions-inaccurate-and-misleading-electoral-advertising>

[50]ACT Electoral Commission, ‘Frequently asked questions - Inaccurate and misleading electoral advertising’, viewed 29 March 2023, <https://www.elections.act.gov.au/frequently_asked_questions/frequently-asked-questions-inaccurate-and-misleading-electoral-advertising>

[51]ACT Electoral Commission, ‘Frequently asked questions - Inaccurate and misleading electoral advertising’, viewed 29 March 2023, <https://www.elections.act.gov.au/frequently_asked_questions/frequently-asked-questions-inaccurate-and-misleading-electoral-advertising>

[52]Houses of the Oireachtas, Electoral Reform Act 2022, (Act 30 of 2022), Electoral Reform Bill 2022 (Bill 37 of 2022), viewed on 1 March 2023, <https://www.oireachtas.ie/en/bills/bill/2022/37/>

[53]Department of Housing, Local Government and Heritage, Ireland, Significant Modernisation of Ireland’s Electoral System to be delivered under Electoral Reform Bill, 30 March 2022, viewed on 1 March 2023, <https://www.gov.ie/en/press-release/859a0-significant-modernisation-of-irelands-electoral-system-to-be-delivered-under-electoral-reform-bill/#:~:text=Political%20advertising,-Furthermore%2C%20under%20the&text=The%20Bill%20will%20place%20an,the%20buyers%20of%20the%20advertisements.>

[54]An Coimisiún Toghcháin, ‘Electoral Integrity’, viewed 29 March 2023, <https://www.electoralcommission.ie/what-we-do/electoral-integrity/>

[55]An Coimisiún Toghcháin, ‘Electoral Integrity’, viewed 29 March 2023, <https://www.electoralcommission.ie/what-we-do/electoral-integrity/>

[56]An Coimisiún Toghcháin, ‘Electoral Integrity’, viewed 29 March 2023, <https://www.electoralcommission.ie/what-we-do/electoral-integrity/>

[57]An Comhchoiste um Thithíocht, Rialtas Áitiúil agus Oidhreacht, Report on Pre-Legislative Scrutiny of the General Scheme of the Electoral Reform Bill 2020, July 2021, p. 43.

[58]An Comhchoiste um Thithíocht, Rialtas Áitiúil agus Oidhreacht, Report on Pre-Legislative Scrutiny of the General Scheme of the Electoral Reform Bill 2020, July 2021, p. 43.

[59]An Comhchoiste um Thithíocht, Rialtas Áitiúil agus Oidhreacht, Report on Pre-Legislative Scrutiny of the General Scheme of the Electoral Reform Bill 2020, July 2021, p. 43.

[60]Mō Te Kaitiaki Take Kōwhiri, ‘Media Handbook for the 2020 General Election’, viewed 29 March 2023, <https://elections.nz/media-and-news/media-handbook-2/complaints-about-election-advertising/>

[61]Advertising Standards Authority, ‘Advertising Standards Code’, viewed 29 March 2023, <https://www.asa.co.nz/codes/codes/advertising-standards-code/#:~:text=Purpose%20of%20the%20Code&text=All%20advertising%20must%20be%20legal,can%20have%20confidence%20in%20advertising.>

[62]Te Mana Whanonga Kaipāho, ‘Frequently Asked Questions’, viewed 29 March 2023, <https://www.bsa.govt.nz/all-faqs/advertising/#searched-for-%22political+advertising%22>

[63]University College London, Doing Democracy Better: How can information and discourse in election and referendum campaigns in the UK be improved?, March 2019, p.34.

[64]University College London, Doing Democracy Better: How can information and discourse in election and referendum campaigns in the UK be improved?, March 2019, p.34.

[65]University College London, Doing Democracy Better: How can information and discourse in election and referendum campaigns in the UK be improved?, March 2019, p.34.

[66]Te Mana Whanonga Kaipāho, ‘Election Programmes Code of Broadcasting Practice’, viewed 29 March 2023, <https://www.bsa.govt.nz/assets/Uploads/93e1db744d/BSA-Election-Programmes-Code-English-v2.pdf>

[67]Te Mana Whanonga Kaipāho, ‘Election Programmes Code of Broadcasting Practice’, viewed 29 March 2023, <https://www.bsa.govt.nz/assets/Uploads/93e1db744d/BSA-Election-Programmes-Code-English-v2.pdf>

[68]Section 199A, Electoral Act 1993 (NZ).

[69]Supporters included Professor Lisa Hill, Submission 332, p. 1; Australian National University Law Reform and Social Justice Research Hub, Submission 354, p. 1.

[70]Rationalist Society of Australia, Submission 300, p. 2; Ms Zali Steggall MP, Submission 1381, p. 3; Australian Greens, Submission 432, p. 5; Canberra Alliance for Participatory Democracy, Submission 309, p. 3.

[71]Professor Luke Beck, Committee Hansard, 17 October 2022, p. 3.

[72]The Real Republic Australia, Submission 401, p. 16, Human Rights Law Centre, Submission 418, p. 14.

[73]Professor Luke Beck, Submission 356, p. 4, The Australian Greens, Submission 432, p. 5.

[74]Digital Industry Group Inc., Submission 378, p. 4.

[75]Centre for Public Integrity, Committee Hansard, 18 October 2022, p. 19.

[76]Professor George Williams, Submission 7, p. 2.

[77]Australia Institute, Committee Hansard, 26 October 2022, p. 4.

[78]Marque Lawyers, Submission 337, p. 6.

[79]Democratic Audit of Australia, Submission 408, p. 5.

[80]See for example, Human Rights Law Centre, Committee Hansard, 17 October 2022, p. 26; Emeritus Professor Marian Sawer, Committee Hansard, 17 October 2022, p. 27.

[81]Professor George Williams, Committee Hansard, 17 October 2022, p. 17.

[82]Australian Electoral Commission, Committee Hansard, 3 November 2022, p. 12.

[83]Australian Communications and Media Authority, Submission 325, p. 1.

[84]Australian Communications and Media Authority, Submission 325, p. 1.

[85]Australian Communications and Media Authority, ‘Online misinformation’, viewed 14 March 2023, <https://www.acma.gov.au/online-misinformation>

[86]Australian Communications and Media Authority, ‘Investigation concepts. Accuracy’, viewed 15 March 2023, <https://www.acma.gov.au/sites/default/files/2020-09/Investigation%20concepts%20Accuracy.pdf>

[87]Australian Communications and Media Authority, ‘Understanding our investigations’, viewed 15 March 2023, <https://www.acma.gov.au/understanding-our-investigations>

[88]Australian Communications and Media Authority, ‘Investigation concepts. Accuracy’, viewed 15 March 2023, <https://www.acma.gov.au/sites/default/files/2020-09/Investigation%20concepts%20Accuracy.pdf>

[89]Australian Communications and Media Authority, Committee Hansard, 18 October 2022, p. 10.

[90]The Hon Michelle Rowland MP, Minister for Communications, Media Release, ‘New ACMA powers to combat harmful online misinformation and disinformation’, 20 January 2023.

[91]The Hon Michelle Rowland MP, Minister for Communications, Media Release, ‘New ACMA powers to combat harmful online misinformation and disinformation’, 20 January 2023.

[92]Australian Competition and Consumer Commission, ‘About the ACCC’, viewed 15 March 2023, <https://www.accc.gov.au/about-us/australian-competition-and-consumer-commission/about-the-accc>

[93]Australian Competition and Consumer Commission, ‘False or misleading claims’, viewed 15 March 2023, <https://www.accc.gov.au/consumers/advertising-and-promotions/false-or-misleading-claims>

[94]Australian Competition and Consumer Commission, Committee Hansard, 18 October 2022, p. 30.

[95]Australian Competition and Consumer Commission, Committee Hansard, 18 October 2022, p. 31.

[96]Australian Competition and Consumer Commission, Committee Hansard, 18 October 2022, pp. 30-31.

[97]Australian Competition and Consumer Commission, Committee Hansard, 18 October 2022, p. 29.

[98]Australian Electoral Commission, Committee Hansard, 28 September 2022, pp. 3-4.

[99]Australian Electoral Commission, Media release, ‘AEC celebrates successful disinformation partnerships’, 3 August 2022.

[100]Australian Electoral Commission, Media release, ‘AEC launches campaign to combat disinformation’, 12 April 2022.

[101]Australian Electoral Commission, Committee Hansard, 3 November 2022, p. 4.

[102]Australian Electoral Commission, Media release, ‘AEC launches disinformation register ahead of 2022 poll, 7 March 2022.

[103]Australian Electoral Commission, Media release, ‘AEC launches disinformation register ahead of 2022 poll, 7 March 2022.

[104]Australian Electoral Commission, ‘Disinformation register. 2022 Federal Election’, viewed 28 March 2023, <https://www.aec.gov.au/media/disinformation-register-2022.htm>

[105]Joint Standing Committee on Electoral Matters, Report on the conduct of the 2019 Federal election and matters related thereto, December 2020, pp. 87-88.

[106]Australian Electoral Commission, A reminder issued to all federally registered political parties: Campaign signage and printed material, March 2022, p. 1.

[107]Australian Electoral Commission, A reminder issued to all federally registered political parties: Campaign signage and printed material, March 2022, p. 1.

[108]Federal Register of Legislation, Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021, pp. 5-8.

[109]Australian Electoral Commission, A reminder issued to all federally registered political parties: Campaign signage and printed material, March 2022, p. 1.

[110]Commercial Radio Australia, Submission 358, p .3.

[111]Commercial Radio Australia, Submission 358, p. 4.

[112]Australian Communications and Media Authority, Submission 325, pp. 2-3.

[113]Marque Lawyers, Submission 337, p. 2.

[114]Australian Electoral Commission, Submission 330, p. 8.

[115]Australian Electoral Commission, Submission 330, p. 9.

[116]Marque Lawyers, Submission 337, p. 2.

[117]Marque Lawyers, Submission 337, p. 5.

[118]Marque Lawyers, Submission 337, p. 6.

[119]Mr Howard Gwatkin, Submission 284, p. 2, Marque Lawyers, Submission 337, p.7.

[120]Mr Howard Gwatkin, Submission 284, p. 2.

[121]See for example Ms Nicolette Boele, Submission 364, p. 26.

[122]Australian Electoral Commission, Submission 330, p. 9.

[123]Marque Lawyers, Submission 337, p. 7.

[124]The Human Rights Law Centre, Submission 418, p. 16.

[125]Australian Electoral Commission, Submission 330, p. 9.

[126]Mr Travis Jordan, Submission 245, p. 6, Marque Lawyers, Submission 337, p. 7, Mr Mark Yore, Submission 346, p. 2.

[127]Marque Lawyers, Submission 337, p. 7.

[128]Mr Mark Yore, Submission 346, p. 2.

[129]Australian Electoral Commission, Submission 330, p. 9.

[130]Australian Electoral Commission, Submission 330, p. 9.

[131]Mr Travis Jordan, Submission 245, p. 6, Ms Joanne Foreman, Submission 283, p.2.

[132]Ms Joanne Foreman, Submission 283, p. 2.

[133]ACT Government, Submission 422, p. 6.

[134]Liberal Party, Submission 382, p. 3.

[135]Australian Electoral Commission, Submission 330, p. 9.

[136]Reset Australia, Submission 420, p. 10, Digital Rights Watch, Submission 246, p. 6.

[137]Australian Electoral Commission, Submission 330, p. 9.

[138]Reset Australia, Submission 420, p. 10.

[139]Reset Australia, Committee Hansard, 18 October 2022, pp. 40-41.

[140]Digital Rights Watch, Submission 246, p. 6.

[141]Meta, Submission 421, p. 29.

[142]Australian Electoral Commission, Committee Hansard, 3 November 2022, p. 8.

[143]Australian Electoral Commission, Committee Hansard, 3 November 2022, p. 8.

[144]Climate 200, Submission 419, p. 9.

[145]Mr Travis Jordan, Submission 245, p. 37.

[146]Mr Travis Jordan, Submission 245, p. 37.

[147]Professor Luke Beck, Committee Hansard, 3 November 2022, p. 18.

[148]Mr Andrew Johnson, Chief Legal Officer, Legal Services Branch, Australian Electoral Commission, p. 8.

[149]Accountability Round Table, Supplementary toSubmission 343, p. 7.

[150]Accountability Round Table, Supplementary to Submission 343, p. 11.

[151]Climate 200, Submission 419, p. 14.

[152]Human Rights Law Centre, Submission 418, p. 16.

[153]Australia Institute, Committee Hansard, 26 October 2022, p. 2.

[154]Australia Institute, Committee Hansard, 26 October 2022, p. 2.

[155]Professor Luke Beck, Submission 356, p. 4.

[156]Professor Luke Beck, Submission 356, pp. 5-6.

[157]Dr Kevin Bonham, Submission 405, p. 3.

[158]Dr Colleen Lewis, Committee Hansard, 17 October 2022, p. 3.

[159]Dr Colleen Lewis, Private capacity, Committee Hansard, 17 October 2022, p. 4.

[160]Australian Greens, Committee Hansard, 3 November 2022, p. 25.

[161]Mr Michael Maley, Committee Hansard, 17 October 2022, p. 27.

[162]Senator David Pocock, Submission 416, pp. 5-6.

[163]Professor Joo-Cheong Tham, Committee Hansard, 17 October 2022, p. 4.

[164]Australian Electoral Commission, Committee Hansard, 28 September 2022, p. 4.

[165]Australian Electoral Commission, Committee Hansard, 3 November 2022, p. 12.

[166]Australian Electoral Commission, Submission 330, p. 9.

[167]Professor Luke Beck, Committee Hansard, 17 October 2022, p. 4.

[168]Professor Luke Beck, Committee Hansard, 17 October 2022, p. 4.

[169]Australian Competition and Consumer Commission, Committee Hansard, 18 October 2022, p. 29.

[170]Australian Competition and Consumer Commission, Committee Hansard, 18 October 2022, p. 29.

[171]Human Rights Law Centre, Submission 418, pp. 16-17.

[172]Australian Electoral Commission, Committee Hansard, 3 November 2022, p. 7.

[173]Australian Greens, Submission 432, p. 5.

[174]Reset Australia, Submission 420, p. 12; see also pp. 10-12.

[175]Senator David Pocock, Submission 416, p. 5.

[176]Digital Industry Group Inc., Committee Hansard, 18 October 2022, p. 3.

[177]The Australia Institute, Submission 412, p. 11; Professor George Williams, Committee Hansard, 17 October 2022, p.17; Human Rights Law Centre, Submission 418, p. 15.

[178]Professor George Williams, Committee Hansard, 17 October 2022, p.17.

[179]Democracy and Accountability Program, The Australia Institute, Committee Hansard, 26October 2022, p. 5.

[180]Notley T, Chambers S, Park S and Dezuanni M, Australian Media Literacy Alliance, Adult Media Literacy in Australia: Attitudes, Experiences and Needs, p. 72.

[181]Notley T, Chambers S, Park S and Dezuanni M, Australian Media Literacy Alliance, Adult Media Literacy in Australia: Attitudes, Experiences and Needs, p. 12.

[182]ABC News Online, ‘Fact Check’, viewed on 21 December 2022, www.abc.net.au/news/factcheck/. Australian Broadcasting Corporation, Committee Hansard, 18October 2022, p. 36.

[183]Meta, Submission 421, p. 30; Digital Industry Group Inc., Committee Hansard, 18October 2022, p. 3.

[184]Australian Greens, Committee Hansard, 3 November 2022, p.23.

[185]Digital Industry Group Inc., Committee Hansard, 18October 2022, p. 5.

[186]Reset Australia, Committee Hansard, 18October 2022, p. 40.

[187]Senator David Pocock, Submission 416, p. 6.

[188]The Australia Institute, Committee Hansard, 26 October 2022, p. 4.

[189]The Australia Institute, Submission 412, p. 25.

[190]Mr Travis Jordan, Submission 245, p. 6.

[191]Mr Travis Jordan, Submission 245, p. 37.

[192]Human Rights Law Centre, Committee Hansard, 17 October 2022, p.17.