Why is it legal to tell lies during the Voice referendum campaign?
It's illegal for companies to make false or misleading claims, so why is it OK for 'no' supporters to lie during the Voice referendum? Monash University constitutional law professor Luke Beck asks.
A referendum to recognise First Nations Australians in Australia’s Constitution by establishing a Voice to Parliament will be held later this year. The Voice would be an advisory body allowing Aboriginal and Torres Strait Islander people to make representations to parliament and government on matters that affect them.
Campaigning for the “yes” and “no” sides is well under way. However, misinformation and disinformation are a feature of some of the public discussion. Indigenous Australians Minister Linda Burney this week even accused the “no” campaign of engaging in “post-truth politics”.
The Australian Electoral Commission has an online referendum process disinformation register. This is focused on disinformation about the referendum process rather than fact-checking claims made about the Voice.
Several media outlets including RMIT ABC Fact Check, AAP Fact Check and AFP Fact Check are publishing articles fact-checking claims about the Voice.
But why is it legal for politicians and other campaigners to lie to you?
Telling lies is legal
It is perfectly legal to spread misinformation and disinformation and tell outright lies about the proposed constitutional amendment, just as it is legal to tell lies during federal election campaigns.
While Australia has laws banning businesses from engaging in deceptive and misleading advertising about their products and services, there are no equivalent federal laws that apply to politics. By contrast, South Australia and the ACT have truth-in-political-advertising laws applying to their state and territory election campaigns.
There is one tiny exception to the current ability to mislead voters about the referendum. It is unlawful to mislead voters about how to fill in the referendum ballot form. For example, you would be breaking the law if your advertisement said people had to tick a box on the ballot form (when in fact you need to write “yes” or “no”).
Parliament decided to allow lies during the referendum campaign
The federal parliament passed up an opportunity to ban misinformation and disinformation during the referendum campaign. In January, the parliament’s Joint Standing Committee on Electoral Matters rejected calls to do this.
The committee said “the forthcoming referendum is not the right time to establish a truth-in-political-advertising regime”.
However, the same committee recommended in June that Australia adopt federal truth-in-political-advertising laws that would apply to all future federal elections and referendums.
How do truth in political advertising laws operate?
The South Australian laws have been in operation since 1985. Those laws work by making it unlawful for political advertisers to make purported statements of fact that are misleading to a material extent.
Importantly, these laws don’t seek to stop people expressing their opinions, even the most silly and uninformed opinions.
The key distinction is between purported statements of fact and opinions.
So, for example, in 1995 the South Australian Supreme Court heard a case about an election ad claiming the state government had said schools with fewer than 300 students would be subject to closure. The ad was found to contravene the law. The government had never said that. The statement was a purported statement of fact and it was misleading.
By contrast, in a 2010 case the South Australian Supreme Court rejected an argument that a leaflet accusing a politician of being “soft on crime” breached the law. That statement was simply an opinion.
Most cases in South Australia don’t end up in court. The law allows the Electoral Commission to request that misleading advertisements be taken down and a retraction issued.
Do these laws actually work?
The most important goal of truth-in-political-advertising laws is to improve political practice and promote a better political culture. That is, the goal is prevention of misinformation and disinformation, rather than punishment.
The South Australian electoral commissioner, who enforces the state’s truth-in-political-advertising laws as the independent regulator, has commented that such laws have a meaningful impact in reducing misleading electoral advertising and do so because of the political culture the existence of the law has helped to create.
Federal parliament’s Joint Standing Committee on Electoral Matters says “lies, misinformation and disinformation are spreading at an exponential rate” and that the South Australian model of truth-in-political-advertising laws is “successful”.
So it is a great shame that the federal parliament decided to allow misinformation and disinformation during the referendum campaign.
This article originally appeared in The Conversation and is reproduced here with permission.
Luke Beck is a constitutional law professor at Monash University.
What lies and misinformation are you referring to in this case?
Also, as a professor, you should know that there are no truth or lies in the law, just interpretations, regardless of intent, that are endlessly debated over time.
This is nothing more than pure flag raising for a political cause you’re passionate about.
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You mention lying and specifically only mention the No campaign supporters… Is this not an example of being misleading?
Unless of course the No campaign are actively lying… Do you have some examples? Is the Yes campaign not lying or being misleading at all?
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This is the strangest article. Also highly hypocritical, you claim the ‘No’ side is lying, but provide neither any examples nor evidence of a claim. One could say you are making false or misleading statements.
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Non-Aboriginal people being worried that Aboriginal people are going to take their land is surely peak irony.
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It’s an advisory body, not a third chamber of parliament. Your house/farm is safe.
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“The Voice would be an advisory body allowing Aboriginal and Torres Strait Islander people to make representations to parliament and government on matters that affect them” – this issue here is what does .”….on matters that affect them” ACTUALLY MEAN? It could be argued that everthing affects them – including the right to the land your house or farm is on and if there should be some form of compensation or tax applied to it? This is why No can be the only vote as we don’t actually KNOW what we are voting for? Better Health, Better education etc – YES, YES.
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Dear Mumbrella. Can you have a look at your comments section and find a way to link responses to comments. Every other site manages it. Thanks.
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“Your house/farm is safe.”
They said that about Mabo, now in Western Australia farms and any homes over 1100square meters must seek aboriginal permission even for small developments due to the Aboriginal Cultural Heritage Act.
This is a direct end result of Mabo and wokeism
The Voice will go much further quicker.
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This article is from the Conversation who won’t allow comments on it. This have shut down almost all conversations on The Conversation while having article after article pushing the Yes vote.
As far as misinformation, the vast majority is coming from the Yes camp. There are many very qualified constitutional experts who say the Voice power will be taken to the High Court to challenge all sorts of laws and possibly win. Almost any legislation can be linked to aboriginals in one way or another.
Yet the Yes camp are absolutely sticking to the line this won’t happen. A completely ridiculous position. The wording of the referendum seems DESIGNED to make challenges at the High Court succeed.
Blind Freddy can see it but not the mainstream media, academics, the law profession and progressives. The Law profession are hopelessly compromised here, challenges to the High Court due to the referendum would be extremely lucrative, they should excuse themselves from the debate because of a conflict of interest.
THIS is the misinformation in the referendum, not anything from the right,
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A lie a day keeps the referendum away
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More scare mongering by the no campaign.you ARE ALL RUNNING SCARED. HOWARD THE COWARD TRIED THE SAME TACTIC and Look where that got him, voted out in disgrace. it’s about time you lot had a good look at yourselves in the mirror because the good people of Australia are not going to take your extreme negativity any more.
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The Conversation has never had commenting functionality?
– Shannon Molloy, editor
Article 26 of UNDRIP and the Law Council of Australia demanding “WE MUST PASS THE VOICE” is all you need to know about this boondoggle. Easy to find online, read article 26 and imagine what a lawyer could do with that wording. The law council of Australia represents 90,000 aussie lawyers. Australians need to take 4 minutes of your day to look this up before you vote.
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