Clive Palmer is spending heavily on an election campaign against a non-existent “death tax”. The law lets him, and media companies won’t say no to the advertising dollars. Should it, and should they?
First, we might note this particular scare campaign is not new. Conservative politicians, including Palmer, trotted it out at the 2019 national election.
In their most outrageous form, the ads feature Palmer’s United Australia party candidates (such as his wife) urging electors to “Stop Labor’s 20% Death Tax”. Labor has no policy to reintroduce a tax on bequests, however large the inheritance, anywhere in Australia.
The framing, the rising inflection in the speaker’s voice and the faux specificity of the claim are all designed to arouse emotion and credulity, by diverting attention from its factual baselessness.
Mineralogy, a Palmer company, is sending similar claims via texts to mobile phones. Given unsolicited phone messages peeve many people, this is canny. A faceless company, rather than Palmer or his party, wears any backlash.
What, if anything, can be done about this sort of campaigning? Truth in electoral advertising laws apply in South Australia and were just introduced in the ACT. These laws make it an offence to include materially misleading factual claims in election advertising.
The “death tax” ads would fall foul of those laws. The electoral commission would request the ads be ceased, and could seek a swift enforcement order. In serious cases, there might be post-election prosecutions, or even challenges to the results of ultra-marginal seats targeted by the misinformation.
Such laws could ensure independent scrutiny and correction of other factually dubious campaigns. Just this week, Queensland Resources Council ads claiming the mineral sector “employs 372,000 Queenslanders” came into question. The ads overstate the direct employment numbers by more than 400%.
But such laws are no panacea. They only address egregiously misleading activity. To have an offence capturing misleading advocacy by ordinary folk and social media users could chill speech, so the laws focus on concerted, resource-intensive campaigning.
What does that leave out? Many in the press are increasingly engaged in political “campaigning”. Yet only the outer reaches of defamation and vilification law touches the Andrew Bolts and talkback radio audiences of the world.
Codes of conduct for licensed broadcasters do let audiences complain of inaccurate reporting in news and current affairs. But complaints to the broadcasting authority are rarely resolved in a timely way. So any public reprimand or correction ends up being fairly belated and limp.
Besides penumbral issues of who is covered, there is a deeper, philosophical question. What is “truth” in politics – as opposed to vision, positioning or branding? Palmer has a penchant for political billboards featuring a youthful, barrel-chested version of himself. Do such images contain “factual” content, or are they just marketing fluff?
Every candidate wants flattering images of themselves and unflattering images of their rivals. And we don’t want to force candidates to throw out their plastic signs every election.
But we live in an era when strength and vitality have been political themes, even before Trump’s bout of Covid and claims about Biden’s dotage. At what point does campaigning using dated images become misleading?
There’s a final practical question for any law: who decides? Many electoral commissioners would run a mile to avoid ruling on the veracity of electoral advertising. As independent “integrity” bodies, they would do that job if required. But they would need to avoid being overwhelmed with complaints when their main job is running a smooth voting system.
Could the media self-regulate? Self-regulation feels like soft law, but it can be effective. The association of commercial broadcasters and the Advertising Standards Council would once pull, or demand modification of, misleading political ads. But some years ago those bodies vacated the field. Ruling on political ads felt like a hot potato; and cash-strapped media outlets often seem more worried about their bottom line than healthy public discourse.
Facebook and other internet behemoths are starting to take steps against misleading material they help distribute. Unlike old media outlets, social media companies can even afford to reject political advertising altogether: as Facebook US plans to do.
That leaves the problem of viral online misinformation. Internet companies can remove false information, as they are doing now with health-sensitive coronavirus claims. They can even include fact-checking labels, say on misleading presidential tweets about the voting process. But these are baby steps, out of a swamp of their own creation.
Back to Australia today. One saving grace is that Queensland (like some other jurisdictions) now has expenditure caps for state elections. So Palmer cannot carpet-bomb with the $60m he spent at the federal election – although with 55 candidates, his party can still spend more than $8m in Queensland. For small mercies, we may be thankful.
• Professor Graeme Orr teaches at the University of Queensland and is author of The Law of Politics (2nd edition, 2019)
