Are Truth in Political Advertising Laws Constitutional?
Kieran Pender
13.04.2022
A federal election is imminent. Following the Mediscare scandal of 2016 and the death tax saga of 2019, it is perhaps only a matter of time before a major mis- or dis-information campaign hits the 2022 election. Attention will inevitably turn to a regulatory response. One frequently-cited proposal is a truth in political advertising law, which would penalise false or misleading political advertising. Such laws currently exist in South Australia and the Australian Capital Territory. Last year, independent MP Zali Steggall proposed a federal equivalent via a private member’s Bill.
Laws that regulate political speech face constitutional obstacles in Australia, as a result of the implied freedom of political communication. Laws that regulate political communication during an election campaign can expect to face heightened judicial scrutiny, given the importance of such communication to the democratic process. Accordingly, it seems timely to ask: are truth in political advertising laws (TPALs) constitutional?
This is not an entirely novel question. The SA TPAL was challenged in the 1995 case of Cameron v Becker; the Full Court of the Supreme Court of South Australia held that the law was consistent with the implied freedom. However, Cameron was decided at the dawn of the implied freedom era. The doctrine has changed significantly in subsequent decades, with its restatement in Lange v Australian Broadcasting Corporation (1997) and the introduction of structured proportionality in McCloy v New South Wales (2015). Does Cameron remain good law?
Uncertainty around the constitutional validity of TPALs was underscored by a recent Victorian government response to the Victorian Parliament’s Electoral Matters Committee, which had recommended the enactment of a TPAL. Expressing in-principle support for regulation of false or misleading political advertising, the government indicated it would ‘analyse and consider the implications of any reforms … on the limited implied right of political communication under the Commonwealth Constitution’.
This blog post, which draws from a recently-published paper in the Sydney Law Review, will begin by providing some context to the enactment of TPALs in Australia. It will then assess the existing TPALs, in SA and the ACT (which are very similar), against the current Lange/McCloy test for constitutional validity with the implied freedom. Through this analysis, it will demonstrate how a constitutional challenge to a TPAL might require the High Court to grapple with some unresolved implied freedom issues.
The post will conclude by discussing some of the implied freedom considerations and dilemmas which might inform the drafting and implementation of a federal TPAL. That exploration highlights a legislative catch-22: minimalistic regulation may be insufficient to curtail the rise of electoral misinformation, while more robust laws risk invalidity under the Constitution. This post takes no position on the desirability of TPALs. It is directed not at the question of whether TPALS should be enacted, but instead whether they can – consistently with the Constitution.
Context
Concern with the propriety of political campaigning is hardly a recent phenomenon. As early as 1895, Britain enacted a law regulating false statements in the electoral context; a Judge was soon bemoaning the ‘great pity that in elections at the present time so many false statements are made, and that votes are obtained in this way’. In an effort to address such concerns, the first federal electoral law in Australia, the Commonwealth Electoral Act 1902 (Cth), contained authorisation requirements: the publication of electoral advertisement handbills or pamphlets was prohibited unless the advertisement identified the authorising individual and their address (s 180(a)). (Similar requirements—updated for modern communication methods—still exist today).
In 1911, this requirement was expanded to cover published political comment, after which it was challenged in the High Court. In Smith v Oldham (1912), the law was upheld. Justice Isaacs insisted: ‘Parliament can forbid and guard against fraudulent misrepresentation. It would shock the conscience to deny it.’
It was not until the 1980s that these issues were revisited with any vigour. In Evans v Crichton-Browne (1981) the High Court read down another provision in the 1911 amendments, which prohibited ‘any untrue or incorrect statement intended or likely to mislead or improperly interfere with any elector in or in relation to the vesting of his vote’. Informed by free speech concerns, the High Court limited this provision to conduct interfering with the physical act of voting, rather than the wider process of voter deliberation. But it added a caveat: ‘This Court is not concerned with what it would be desirable for Parliament to provide, but with the meaning of what Parliament has in fact provided’.
The Hawke government then took office having pledged to reform electoral law. A parliamentary committee tasked with considering reform options recommended the Australian Electoral Office be empowered to seek injunctive relief against misleading political advertising. It also suggested the Committee might consider the matter ‘at greater length’. But it was not given this opportunity; instead, the Hawke government forged ahead with Australia’s first TPAL, which made it an offence, punishable by six months’ imprisonment or a fine, to print, publish, distribute, cause, permit or authorise any electoral advertisement containing a statement that is untrue and ‘is, or is likely to be, misleading or deceptive’.
The provision was short-lived. The Committee’s follow-up report raised concerns and recommended the TPAL’s repeal (before it had even been operational at an election). It was duly removed from the statute book, over the objections of a dissenting committee member (Senator Michael Macklin), who wrote: ‘It is surely a small price to pay for a better informed democracy that politicians are required to tell the truth’.
While a federal TPAL has yet to reappear, the dissentient’s sentiment found greater support among Australia’s states and territories. South Australia introduced a TPAL in 1985 (s 113 of the Electoral Act 1985 (SA)) – it has remained in force, with only superficial amendments in the intervening decades. The SA TPAL provided the model for an ACT TPAL, which took effect in July 2021 (s 297A of the Electoral Act 1992 (ACT)). The SA law has been put to use; in the six SA elections since 1997 (excluding the most recent one), the SA Electoral Commission received 313 complaints about misleading electoral advertising, made 25 retraction requests and initiated several lawsuits. A UK report in 2019 concluded the SA TPAL had been relatively ‘benign’ but had constrained ‘politicians from making claims that are demonstrably false’ (at 29).
The ACT TPAL, which is a helpful model for consideration, drawing largely on the SA TPAL—albeit with more modern drafting—provides:
297A Misleading electoral advertising
(1) A person commits an offence if—
(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.
…
The remainder of the provision provides a defence where the defendant was not involved in determining the content of the advertisement, and could not reasonably be expected to have known the statement was misleading and deceptive. It then empowers the electoral commissioner to, inter alia, seek a retraction and apply to the Supreme Court for injunctive relief.
Are TPALs Constitutional?
In Cameron, the SA TPAL was held to be consistent with the implied freedom. Much has changed in the subsequent decades. It is therefore helpful to consider whether the ACT and SA TPALs remain valid under the current Lange/McCloy structured proportionality test. Doing so illuminates residual uncertainties with current implied freedom jurisprudence.
Burden
This is a superficially simple question. On their face, TPALs burden political communication. As much was accepted in Cameron. However, there is an unresolved question about the extent to which communication inimical to the system of government the implied freedom is intended to protect is in fact protected by the freedom. In the 1998 case of Brown v Members of the Classification Review Board, Heerey J of the Federal Court – considering a challenge to censorship of a student newspaper that had published a guide to shoplifting – observed:
[a]ll this may be in one sense politics, but the [c]onstitutional freedom of political communication assumes — indeed exists to support, foster and protect — representative democracy and the rule of law. The advocacy of law breaking falls outside this protection and is antithetical to it.
The Commonwealth advanced similar submissions in Zhang v Commissioner of Police, a recent foreign interference case in the High Court: ‘the implied freedom does not protect communications that are inimical to the free and informed choice of electors’ (submissions at [29]). As Zhang was resolved on other grounds, the High Court is yet to explicitly address this question. It may be required to do so in the TPAL context, given false and misleading statements obviously do not contribute positively to representative democracy. Yet given a TPAL might not only restrain the making of materially-false statements, but could also have a chilling effect on a wider category of communication, it is by no means certain the High Court would accept such a submission. The Court’s caution in Coleman v Power (2004) to avoid excluding ill-tempered communication from implied freedom protection might also contribute to a view that TPALs burden the freedom.
Purpose
It seems highly likely that the High Court would find TPALs to be directed at a legitimate purpose, not only compatible with Australia’s system of government, but serving to enhance it. In several recent cases (such as Unions NSW (2013)), the Court has accepted legislative motives relating to election integrity as legitimate in implied freedom cases.
Structured Proportionality
Since McCloy, the final question requires a three-stage proportionality process: are the laws (1) suitable, (2) necessary and (3) adequate in balance? The current TPALs are rationally connected to their purpose, and thus suitable. There might be more scope for argument over necessity. It could be suggested, for example, that the offence might be more narrowly targeted – either by coverage (perhaps only applicable to materially false statements of fact), duration (they could be limited to the weeks prior to an election) or the regulated class (perhaps only political parties or candidates could be caught, whereas the existing provisions seemingly also capture third party campaigners). While these arguments are plausible, they are unlikely to meet the high threshold required by the necessity test.
Are the SA and ACT TPALs adequate in balance? They impose a relatively modest burden on the freedom. This burden is imposed in the pursuit of a legislative purpose aimed at protecting Australia’s system of informed electoral democracy (which, in turn, ensures representative government). Of course, a court should remain wary of legislative attempts to burden the implied freedom, whatever the motive. Nonetheless, there is evidence, in Australia and abroad, that misleading electoral advertising is having a corrosive impact on democratic norms. Accordingly, the modest burden, compelling purpose and the suitability and necessity of the SA and ACT TPALs cumulatively favour the conclusion that these TPALs are adequate in balance. Certainly, it cannot be said that the benefit sought to be achieved by the TPALs is manifestly outweighed by the modest burden they impose on the implied freedom. That test requires a high threshold for a finding of invalidity; in the circumstances of existing TPALs, it is very unlikely the threshold would be reached.
Calibrated Scrutiny
The Lange/McCloy test’s structured proportionality is not universally endorsed by the High Court. Justice Gageler has been a particularly strident critic, proposing instead a method of calibrated scrutiny (see eg, Clubb v Edwards (2019) at [161]-[162]). There has been little outcome-divergence between the two approaches to date. Yet it is possible TPALs could represent an area for divergence, because of an apparent tighter scrutiny in the calibrated scrutiny method of the means employed by the legislature.
The necessity phase of the Lange/McCloy test seeks an alternative that would impose a ‘significantly lesser burden’, while the adequacy phase asks whether the benefit of the law is ‘manifestly outweighed’ by the burden’s adverse effect (Comcare v Banerji at [35]). In contrast, calibrated scrutiny approaches the inquiry from a different direction, with attention directed to the burden–purpose nexus. This distinction can be illustrated with an example: Gageler J (and possibly Gordon J) could find that a law is insufficiently tailored because it goes further than necessary to achieve its purpose. Such a law may nonetheless survive a structured proportionality analysis: an alternative might have a lesser burden (but not significantly so), while the law’s purpose might be outweighed by the burden’s impact (but not manifestly so). In such circumstances, a majority of the current High Court might uphold a law, while those undertaking a calibrated scrutiny approach might find it invalid.
These observations remain largely academic for now, but if the calibrated scrutiny approach is ultimately adopted by a majority of the High Court, it could mean TPALs face a more rigorous examination for constitutional compliance. In sum, despite this caveat, it seems likely that the existing TPALs in SA and the ACT would be considered consistent with the implied freedom of political communication.
Efficacy or Validity?
That the TPALs currently enacted in Australia may well survive constitutional challenge is not the end of the inquiry. The SA and ACT TPALs are limited in scope. If their validity is contested, this will aid in the likelihood of a finding that they are constitutional. However, the extent to which they will adequately address the increasing challenge posed to Australia’s electoral system by dis- and mis-information is uncertain. As has been observed in the British context by Jacob Rowbottom, ‘[t]he more that the law is tailored, the less frequently it is likely to be used and it will do little to improve the quality of political debate’ (at 534). In the years ahead, other Australian jurisdictions—including the Commonwealth—may consider implementing TPALs. If the existing laws are deemed insufficient, policymakers will consider more expansive approaches. Consideration of implied freedom jurisprudence therefore provides useful guidance as to circumstances in which expanded TPALs might and might not be constitutionally permissible.
Scope
The most obvious method of bolstering the efficacy of TPALs is to expand their scope. Such expansion could proceed across two dimensions: (i) increasing the substance covered; and/or, (ii) increasing the form covered. Australia’s existing TPALs are: (i) limited to statements of facts; and (ii) limited to advertising. At its maximum extent, regulation could be expanded to: (i) encompass any statement that is inaccurate, misleading or deceptive; and/or (ii) cover any election-related communication. However, an expanded scope would heighten implied freedom concerns.
Various jurisdictions have experimented with different methods of defining coverage. In Britain, a longstanding TPAL limits its application to ‘any false statement of fact in relation to the candidate’s personal character or conduct’ (s 106). In 2010, the High Court of England and Wales rejected an expansive construction that would have extended the TPAL to political conduct. The Court held: ‘It would be difficult to see how the ordinary cut and thrust of political debate could properly be carried on if such were the width of the prohibition’ (at [113]). In the US, meanwhile, it has been argued that laws equivalent to the offence read down in Evans have the surest constitutional footing: ‘The strongest case for constitutionality is a narrow law targeted at false election speech aimed at disenfranchising voters’ (at 71). It has also been suggested that attempts to regulate false speech by foreign actors might be accommodated within US First Amendment jurisprudence (at 154-158).
The closer the nexus between the content or nature of the prohibited statement and the TPAL’s purpose, the more likely it will be to survive constitutional scrutiny. It seems uncontroversial that a prohibition aimed squarely at speech intended to disenfranchise voters will be valid (laws of that nature already exist in most Australian jurisdictions). Similarly, regulation of foreign misinformation might receive less implied freedom scrutiny (a related issue was raised, although not decided, in Zhang). Yet moving beyond coverage of materially factually-inaccurate statements, towards coverage of hyperbole and exaggeration, will engender greater constitutional risk. Similarly, purported statements of facts are at the safer end of the spectrum, but seeking to regulate statements more generally (as did the short-lived federal TPAL), and particularly statements of opinion, would raise concerns.
Existing TPALs are restricted to advertising. Contemporary electoral campaigning is multifaceted and extends beyond advertising. If a politician made false claims in a newspaper column, or during a talkback radio interview, they would not be covered by the existing TPALs. If a politician made false claims on social media, they would likely not be covered (although coverage may arise if the post was ‘sponsored’). Indeed, one of the more notorious recent examples of inaccurate political campaigning, Mediscare, was undertaken via text message—such that it is unlikely to fall within the existing coverage. Expanding TPALs to cover some or all of these fora would raise implied freedom concerns. Broader coverage would significantly increase the burden on political communication, particularly if, as presently, the laws extend beyond political parties and candidates. It might also change the balance of the necessity analysis.
Enforcement
The SA and ACT TPALs involve a three-phase enforcement model. First, the relevant electoral regulator is empowered to request that the advertiser ceases disseminating a false statement and publish a retraction. Second, the regulator can apply to the relevant Supreme Court. The Court, if satisfied (under the ACT TPAL) or if satisfied beyond reasonable doubt (under the SA TPAL), may order that the advertisement be withdrawn (SA), not disseminated again (ACT) and/or that a retraction, of a specific manner and form, be published (both). Third, as the prohibition on misleading advertisement is an offence, a prosecution can be brought by the appropriate authorities.
The appropriateness of this model is contested. In testimony to the Joint Standing Committee on Electoral Matters in 2019, Australian Electoral Commissioner Tom Rogers expressed caution about involving the Australian Electoral Commission in such a model at the federal level: ‘Truth, particularly at election time, is sometimes in the eye of the beholder.’ In a case following the 2019 election, Garbett v Liu, the Federal Court cautioned against its involvement in TPAL-style disputes: ‘differences of views as to what is misleading or deceptive, in particular among political partisans or between opponents, may move into questions that are scarcely justiciable’ (at [37]).
These issues have constitutional salience because the scheme’s arbiter may influence the implied freedom analysis. Giving a non-judicial body, such as the Australian Electoral Commission, the ability to make conclusive determinations about accuracy may imperil validity, because limiting appeal and review options would increase the burden on communication. Firmly incorporating the judiciary in any TPAL scheme is therefore a safeguard against invalidity, notwithstanding the concerns expressed by the Federal Court.
To mitigate the supervisory burden on regulatory bodies, some jurisdictions with cognate schemes have permitted enforcement proceedings to be brought by members of the public. However, in Australia this may prove somewhat of a double-edged sword: while it could increase efficacy, by relieving that responsibility from the shoulders of an electoral regulator, it might significantly increase the burden on communication. This is so due to the risk of politically-motivated TPAL enforcement, which would chill speech by raising the costs of electoral advertising (due to the need to defend frivolous cases). These concerns were central to an American court invalidating Ohio’s TPAL on First Amendment grounds in 2016 (in Susan B Anthony List v Driehaus). The law lacked an adequate filtering mechanism for frivolous claims, which meant third-party complainants could ‘use the law’s process “to gain a campaign advantage without ever having to prove the falsity of a statement”’ (at 475). Notwithstanding the divergence between implied freedom and US First Amendment jurisprudence, these factors would likely bear on the extent of the burden imposed and may well jeopardise the necessity analysis under the Lange/McCloy test.
Penalties
The nature and extent of the penalty imposed by any TPAL will likely have a bearing on validity in the event of an implied freedom challenge, influencing the extent of the burden, the necessity of the approach adopted and its adequacy in balance. The SA TPAL provides for a maximum penalty of $5,000, if the offender is a natural person, or $25,000 if the offender is a body corporate; the maximum penalties in the ACT are slightly higher. The federal provision that was read down in Evans to apply narrowly only in relation to the act of vote-casting provided a maximum penalty of imprisonment for a period not exceeding six months (or an equivalent fine). In Evans, the punitive nature of the provision, including the potential for imprisonment, was held to justify its reading down. (Today, the equivalent provision, s 329 of the Commonwealth Electoral Act 1918, provides a maximum penalty of three years’ imprisonment or 100 penalty units).
The dilemma for legislative drafters is that the more severe the penalty, the greater the risk of invalidity. However, modest financial penalties may not be a sufficient deterrent, particularly for larger political parties. Given the multi-million dollar budget of major parties in a federal election, for example, a five-figure fine would likely be seen simply as a campaigning cost. While larger financial penalties might have a disproportionate burden on smaller political parties or independents (and hence increase the risk of invalidity), penalties expressed as a percentage of annual turnover (which for parties is typically a mix of public funding and donations), as is sometime the case for corporate offences, might be an appropriate solution. This could serve as a sufficient deterrent for larger parties without unduly burdening campaigners without such deep pockets.
TPALs providing for potential imprisonment would likely face heightened implied freedom scrutiny, given the severity of the penalty would increase the burden on communication. Such an approach, if challenged, would likely also be required to demonstrate the ineffectiveness of financial penalties at the necessity stage of proportionality analysis. It is notable that Steggall’s proposed federal TPAL provides only for financial penalties, despite the presence of imprisonment penalties elsewhere in federal electoral law, including the related provision considered in Evans.
Evidence
The enactment of TPALs, whether modelled after existing laws or in a more expansive form, should be accompanied by supporting research indicating the problems caused by electoral misinformation and the limited impact of TPALs on political communication. Such research, of the nature typically undertaken by parliamentary committees, will become necessary to justify the TPAL’s scope if challenged on implied freedom grounds. A failure to consider fully the appropriate contours of such legislation can be fatal to validity. As much was clear in Unions NSW v New South Wales (No 2) (2019), after NSW halved the campaign expenditure cap for third parties at state elections. This reduction was done without any proper consideration of whether the revised cap still enabled third-party campaigners to reasonably communicate their electoral messages. The absence of evidence supporting the legislative choice was criticised by the Court and contributed to it invalidating the law. Legislatures considering TPALs should therefore carefully consider the need for, and impact of, such laws prior to enacting them to ensure maximum prospects of validity.
Conclusion
TPALs raise tricky issues, including but not limited to constitutional concerns. Litigation relating to electoral regulation has been central to the implied freedom’s development in the past three decades, and that trend looks set to continue. Regulation cannot single-handedly fix democracy’s truth problem. Yet TPALs may well be an important part of the arsenal deployed to reverse the tide of misinformation infecting Australia’s elections.
—
Kieran Pender is an honorary lecturer at the ANU College of Law. These views are his own. This blog post draws from Pender, ‘Regulating Truth and Lies in Political Advertising: Implied Freedom Considerations’ (2022) 44 Sydney Law Review 1.
Suggested citation: Kieran Pender, ‘Are Truths in Political Advertising Laws Constitutional?’ on AUSPUBLAW (13 April 2022) <https://www.auspublaw.org/blog/2022/04/are-truth-in-political-advertising-laws-constitutional>.