Political Advertisements
The Commonwealth Electoral Act 1918 governs how federal elections are to be conducted and sets out the powers and functions of the Australian Electoral Commission (AEC). Under the act, there is a range of offences relating to elections, including publishing misleading or deceptive material. However, a recent ruling by the AEC has highlighted the limitations in the operation of this law. This page deals with the law surrounding misleading or deceptive political advertisements.
Misleading or deceptive publications
Section 329 of the Electoral Act 1918 makes it an offence, during an election period, to print, publish, distribute or cause to be printed, published or distributed, any matter or thing likely to mislead or deceive an elector in relation to the casting of a vote.
This offence is punishable by a maximum penalty of three years of imprisonment or a fine of 100 penalty units, or both. If the offender is a body corporate, the maximum penalty is a fine of 500 penalty units.
Garbett v Liu 2019
During the 2019 federal election campaign, the Liberal Party produced corflutes written in Mandarin and stating that the right way to vote was to place a ‘1’ next to the Liberal Party candidate’s name. The corflutes were displayed throughout the electorates of Kooyong and Chisholm next to AEC signage.
Liberal candidates Gladys Liu and Josh Frydenberg were elected. Unsuccessful candidate for Kooyong candidate Oliver Yates and Chisholm constituent Vanessa Garbett applied to the AEC for a finding that the election result was invalid.
The Federal Court found that the corflutes breached section 329 of the Electoral Act as they were likely to mislead and deceive voters in relation to the casting of their votes by implying that only a vote for the Liberal Party was a valid vote.
However, the court found that it was likely that only a handful of voters would have been influenced by the corflutes and that this was unlikely to have altered the election result. It declined to find that the election result was invalid.
Advance Australia
During the 2022 federal election campaign, conservative political group Advance Australia created and displayed corflutes depicting two independent candidates, Zali Steggall and David Pocock, wearing clothing that contained the Green Party logo. Neither candidate was endorsed by the Greens. The material did not contain any other content to counter the inference that the person depicted was a member of the Greens Party.
After Ms Steggall and Mr Pocock complained to the AEC, the Commission found that the material contravened section 329 of the Electoral Act. The material was displayed during an election period, which is the period between an election being called and the end of polling day. Displaying misleading material during an election period is an offence.
Advance Australia did not admit the breach but agreed not to further display the signage.
The AEC found that the material breached the Act because it was displayed during an election period. The consequences of this finding are that advertising that is misleading or deceptive may be published at other times and no provision is contravened.
Controversy about political advertising laws
Since the AEC’s 2022 decision, there have been calls for the Electoral Act to be reformed to unequivocally prohibit misleading advertising that is likely to influence the casting of votes at any time, not only during an election campaign.
Concerns have been expressed that misleading political advertising has the potential to damage the electoral prospects of a candidate or party. It also has the capacity to compromise the integrity of the electoral system by causing voters to cast their votes based on lies.
During 2024, the ALP introduced a bill to parliament that sought to introduce ‘truth in advertising’ laws. However, the Bill was withdrawn due to lack of support.
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