Political Campaign Cans and Can’ts

Mud-proof gear on everybody, the 2016 Federal Election ads have begun. But is election advertising really the free-for-all it appears to be?
 
If you’ve been hiding under a rock for the past few months, you might want to go back for a few more weeks: because the Federal Election date has been set for July 2^nd. The usually sleepy political ad market has roared to life for a couple of frenzied months, and few pollies will escape the ruckus unscathed. But despite all the mud-slinging, it’s not a free-for-all: political advertising is highly regulated by the Australian Electoral Commission (AEC). Let’s look at some of what you can and can’t do when it comes to advertising during a campaign.
 
Can’t: Political Drive-By
Want to buy some media for a (rhetorical) swing at your least favourite pollie at election time, but don’t want them to find out it was you? Not going to happen, according to Section 328 of the Commonwealth Electoral Act 1918. Any electoral advertising (that is, any media that pertains to a current electoral matter) must contain the name and street address of the person who authorised it – that’s the fine print and quick-spoken bit at the end of every party/union/lobby ad you see. So while you can throw metaphorical eggs at their house, but you do have to dob yourself in afterwards.
Exemptions to these laws do exist, but they’re not going to help you stay secretive. You can put a pithy slogan on a t-shirt and wear it in the street without stating who authorised it, but 1) that’s not exactly impressive reach, and 2) so much for anonymity. Alternatively, you can escape classification as ‘electoral advertising’ by including a bit “announcing the holding of a meeting” – but (I’m guessing) setting up a fake meeting so your political enemy can’t turn up to return fire in person would be a breach of the Act.
 
Can: Lie
The Australian Electoral Commission doesn’t have the right or resources to regulate every aspect of political speech. That’s a reassuring thought for free speech fans, but it’s worth remembering that just because an authorised political advertisement has made it to us doesn’t mean the claims made within it have been declared by any independent body as true. As the AEC put it, they have “no role or responsibility in handling complaints about allegedly untrue statements in published or broadcast electoral advertisements”.
So unless an electoral advertisement crosses the free speech protection line and strays into defamation territory, lies may well be allowed. But don’t worry, I’m sure none of our politicians are going to say anything that… on second thoughts, best do some fact-checking before poll day.
 
 Can’t: Get Sneaky With Flyers
The recent changes to Senate voting rules and the rise of several micro-parties have shown just how important preference flows are to forming government and holding the balance of power. So how-to-vote (HTV) cards are some of the most crucial pieces of marketing political parties will produce in an election cycle. But as much as it looks like a flyer free-for-all out there at the primary school gates, there are definitely rules and regulations around their distribution.
A big no-no is handing out HTVs that pretend to be from a party or candidate when they’re not. It’s a pretty audacious move, and every election is rife with allegations that Party X has dressed up ‘counterfeit’ Party Y HTVs to try and move preference flows in a more advantageous direction for the Team Y-ers.
Actual convictions for this are few and far between, but controversies abound. In 2004, the short-lived micro-party ‘Liberals for Forests’ (LFF) distributed HTVs that the Liberal Party of Australia argued (unsuccessfully) were confusingly close in design to those handed out by Lib supporters. In the NSW electorate of Richmond – where no Liberal was standing – Labor scored a narrow win over the Lib’s Coalition partners The Nationals, chiefly because so many LFF voters followed the contentious HTVs and preferenced the ALP.
 
Can: Spend Like Drunken Sailors
In Australia, there are no limits to how much media a party can purchase for electoral advertising. If your party (or your party’s donor) has the money you can buy all the column inches, seconds and bits you want – which seems obvious. But this right hasn’t always been guaranteed, and it’s not the universal standard. Some comparable Westminster democracies forbid paid electoral advertising: in the UK and Ireland, free advertising space is allocated to parties as a proportion of their electoral support; in New Zealand that rule applies to broadcast media, and there are strict monetary limits to electoral advertising spend in other media.
We almost went that route here. Actually, scrap that – we did go that route here. During the Hawke-Keating era, the high price of TV advertising raised concerns that political parties would become dependent on corporate funding, increasing corruption risks and drowning out minority political voices. In January of 1992, the Political Broadcasts and Political Disclosures Act 1991 came into effect, which included a ban on political advertising during election periods and providing for a free air-time system as used in the UK, Ireland and NZ. But those controversial clauses were never enforced – the High Court overturned that part of the Legislation in August of the same year, ruling it an unjustifiable restriction on free political speech, and making a lot of media barons very happy.
 
Can’t: Last-Minute Blasts
In a country with compulsory voting, the last few days of a campaign are critical for politicians trying to gain the support of those all-important swing voters. But the Broadcasting Services Act 1992 prohibits broadcasters (that’s radio and TV only) from playing political advertising from midnight Wednesday before polling day till ballots close on the Saturday. So if you notice all the attack ads abating around the 29^th of June, it’s not because of a spontaneous surge of civility on behalf of our pollies – it’s just the law.
And yes, the definition of ‘broadcasters’ means that newspapers, websites and the other non-broadcast media can take on all the political advertising they want in the dying days of the campaign. The Act ensures that you won’t have to go to the effort of switching channels to avoid the eleventh-hour political noise – but you’ll still have to turn a page or two.
 

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