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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COMMONWEALTH ELECTORAL AMENDMENT (STOP THE LIES)
BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by the authority of Zali Steggall OAM MP)
Commonwealth Electoral Amendment (Stop
the Lies) Bill 2021
General Outline
1 This Bill amends the Commonwealth Electoral Act to prohibit misleading
and deceptive political advertising during Federal elections. The Bill prohibits
advertising that contains a statement of fact which is misleading or deceptive to a
material extent or is likely to mislead or deceive to a material extent. Further, the
Bill prohibits parties, candidates and campaigners from impersonating or passing
off material as being from another candidate. This seeks to address developments
in technology which make it easier to fraudulently impersonate a candidate such
as deep fakes.
2 The Bill creates a complaints process through the Australian Electoral
Commissioner who may order a retraction of the statement and/or an apology to
the effected party. At the same time, a complaint can be pursued through the
Courts.
Background
3 The main purpose of the Bill is to address the volume of misleading and
deceptive political advertising that occurs during Federal elections. Each election,
a number of advertisements and claims by candidates, their parties and associated
campaign groups, are published that are untrue and designed to mislead or deceive
the voter about the position or platform of an opposing candidate. The result of
this has been an erosion of trust in political advertising and in politicians
generally. In addition, it reduces the efficiency of electoral participation.
4 Australia has had no shortage of examples of misleading and deceptive
advertising campaigns. The 'Mediscare' (2016) and 'Death Tax' (2019)
campaigns respectively sought to mislead electors about alternate policies. The
2019 election also saw signs in Mandarin "mimicking the purple theme of the
Australian Election Commission" claiming that preferencing the Liberal Party is
the "correct way to vote". These prominent examples are the tip of the iceberg.
The advent of social media and the ability to micro target advertisements to
particular audiences increases the need for minimum standards to apply to
political advertising and misleading and deceptive content.
5 These recent examples were successful in provoking fear and suspicion of
alternate policies and candidates. The veracity of campaigns such as these could
now be tested through this legislation in a timely way as the evidence on which
such advertising would be based could be challenged through a more detailed
analysis in a statement of fact in proceedings.
6 Polling by The Australia Institute indicates that 9 in 10 Australians want
truth in political advertising legislated. 1 The Competition and Consumer Act
0F
regulates against misleading and deceptive advertising in trade and commerce.
The concept of preventing misleading and deceptive advertising is not foreign to
the private sector and should not be viewed as an attempt to curtail political
expression or freedom of speech. Instead, this Bill seeks to apply the same
standards that is expected in respect to provision or sale of goods and services to
the political realm.
7 This Bill is designed to implement safeguards in Australia against
misleading and deceptive advertising.
Impact on democracy
8 Preventing misleading and deceptive political advertising is vital to a
well- functioning democracy. Disinformation increases the cost of participation in
the democratic process and prevents the electorate from holding a candidate to
account if their victory is based on deceit.
9 Electoral participation should be relatively easy and not costly. Misleading
or deceptive conduct and the spread of disinformation increases the cost of
participating in elections which can decrease voter turnout or the efficacy of their
participation because they are inadequately informed.
10 Disinformation casts off facts which reduce the understanding of voters
about the true nature and issues of the election. It clutters the free speech
condition with misleading and deceptive conduct. Justice Guadron in Australian
Capital Television Pty Ltd v Commonwealth stated that the implied freedom of
political communication is not absolute: rather, it 'is concerned with the free flow
of information and ideas, it neither involves the right to disseminate false and
misleading material nor limits any power that authorises law with respect to
material answering that description'. 2 The Australian High Court has also insisted
1F
that the implied right to freedom of speech in Australia is to be understood, not as
an individual right, but as a social condition. 3 Thus, the implied freedom should
2F
be viewed as a social condition where the marketplace of ideas only operates
efficiently where the free speech is true. Hill, Baltutis and Douglass argue that if
we accept that free speech is a social condition, then any speech act that fails to
promote, or which negatively affects the efficiency of the marketplace of ideas
will fail to qualify as an act of free speech and election disinformation would
certainly fail to qualify. 43F
1
https://australiainstitute.org.au/report/we-can-handle-the-truth-opportunities-for-truth-in-
political-advertising/
2
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 217
3
Damien O'Brien 'Parliamentary privilege and the implied freedom of speech' (1995) 25(6)
Queensland Law Society Journal 25(6). For specific cases see Nationwide News Pty Ltd v Wills
(1992) 177 CLR 1, Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 and
Stephens and Others v West Australian Newspapers Limited (1994) 182 CLR 211. Also see
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 217 (Guadron J)
4
Hill, Baltutis and Douglas (2021) South Australia's Truth in election Advertising Laws: Basis for
a Model for the Rest of Australia, University of Adelaide, 24
11 Various international studies have demonstrated a causal link between
increasing volumes of fake news or disinformation and election outcomes unduly
influenced by the disinformation. For example, Zimmerman and Kohring (2020)
demonstrate this link in the 2017 German election, Jones-Jang et al (2020) on the
US 2018 midterms and Cantarella et al (2019) on the Italian elections.
12 Australia has often been a leader in democratic innovation, and this
legislation is a genuine step towards improving the functionality of our
democracy. This Bill does not constrain political expression, rather it improves
the efficiency of free political communication by removing disinformation.
Influence of Technology
13 The Bill recognises the changing nature of political communication and the
advent of new technology which is further enhancing the scope for misleading and
deceptive advertisements to proliferate unchecked. The modern political campaign
has a new set of threats created through digital platforms. The advent of social
media has enabled candidates, parties and interest groups, to spread information
quickly to mass audiences, without regulation of the veracity of the message. This
legislation seeks to prevent the dissemination of false information via advertising.
14 The work of the Australian Competition and Consumer Commission
through the Digital Platforms Inquiry highlighted the need for greater regulation
of social media content to prevent the dissemination of misinformation. 5 The 4F
release in February 2021 of the Australian Code of Practice on Disinformation
and Misinformation provides for a voluntary self-regulatory mechanism by social
media companies of the accuracy of content distributed through their platforms. 6 5F
However, that code does not address the matter of misleading or deceptive
political advertising as there is no current legal mechanism to underpin the code in
that regard. This Bill provides that mechanism and would complement a
furthering of that work by providing a third-party complaints vehicle and an
enforcement mechanism to address the spread of misinformation during election
campaigns for personal gain.
15 The deployment of bots and micro targeting during the 2016 US Presidential
Election was largely attributed to foreign interference in the election. Twitter
admitted that more than 50,000 Russia-linked accounts used its service to post
automated material about the 2016 US election 7. Australia reacted to this foreign
6F
interference by passing the Electoral Legislation Amendment (Electoral Funding
and Disclosure Reform) Bill 2018 which prohibits only political donations from
foreign sources.
16 As witnessed in the 2020 US Presidential election campaign, many of the
tactics employed by foreign actors in the 2016 election were deployed by
domestic actors. The use of bots and micro targeting of advertising makes it
5
https://www.accc.gov.au/publications/digital-platforms-inquiry-final-report
6
https://digi.org.au/disinformation-code/
7
https://blog.twitter.com/official/en_us/topics/company/2018/2016-election-update.html
significantly more difficult to discover and prosecute mistruths being spread
through traditional and social media. The storming of the US Capitol Building by
supporters of then President Donald Trump, motivated in large part by an online
campaign of misinformation from the Trump campaign, which falsely claimed
that the election had been stolen. It was a vivid indication in the real world of the
violent consequences of factually baseless communication. That development in
the United States should provoke a close examination of what could be done to
prevent the spread of such misinformation and deceptive campaign material in
Australia. This Bill creates both enforceable and normative impacts of legislating
against the dissemination of misleading and deceptive political advertising which
would assist in addressing these concerns.
17 A further concern is the use of deep fakes and advertising of unknown or
confusing origin. A deep fake is a video or voice recording of a person in which
their face or body has been digitally altered so that they appear to be someone
else, typically used maliciously or to spread false information. It could include the
use of a candidate's image, a political party's colours or logos, or other insignia in
a way which is misleading and confuses the electorate as to the origin of the
advertisement. The World Economic Forum has warned that deep fakes could be
weaponised in an election, citing examples of where they have been used in
election campaigns in Belgium, Malaysia and Gabon to destabilise governments
and political processes. 8 7F
18 The Brookings Institute argues that deep fakes are well on their way to not
only distort the democratic discourse but also erode trust in public institutions at
large. 9 This technology has already been deployed in Australia during the 2020
8F
Queensland election campaign, while the advertisement was clearly labelled as
not being the Queensland premier, it is an example of the use of this technology in
Australia and the promoters paid over $7,000 to promote the video into Facebook
feeds of Queenslanders and was viewed up to 1 million times. Deep fake
technology is becoming increasingly accessible and more sophisticated through
improvements in computing power and artificial intelligence.
19 The 'Mediscare' campaign is an Australian example of advertising which
offended the sensibilities of the electorate in the way it passed itself off as being
issued by a government department. While the Mediscare campaign is now
prohibited by amendments to the Criminal Code (see s 150.1), the offence is
limited to conduct which purports to be on behalf of a Commonwealth body. A
candidate or political party would not be protected by it. This Bill amends the
Commonwealth Electoral Act to expressly prohibit the production and distribution
of material that impersonates or passes-off as being another election participant.
8
https://www.weforum.org/agenda/2020/10/deepfake-democracy-could-modern-elections-fall-
prey-to-fiction/
9
https://www.brookings.edu/research/is-seeing-still-believing-the-deepfake-challenge-to-truth-in-
politics/#cancel
Existing Commonwealth provisions
20 At present the Commonwealth Electoral Act s329 prohibits the publishing
or distribution of material that is likely to mislead or deceive an elector in relation
to the casting of a vote. This clause has been narrowly interpreted by the Courts in
Evans v Crichton-Browne 10 to only cover the process of how to physically cast a
9F
vote, not the decision that leads to that vote. The current prohibition in s329 of the
Electoral Act provides for potential regulatory enforcement or successful
prosecution following the decision in Garbett v Liu. Retaining s329 will also
ensure that misleading conduct which is not comprised in an electoral
advertisement (so defined) or which does not contain a statement of fact, but
which is otherwise targeted at the casting of the vote, will remain prohibited.
State and Territory Legislation
21 The South Australian Electoral Act s113 has prohibited misleading or
deceptive statements of fact in electoral campaigns since 1985. Similar language
was employed in the Australian Capital Territory Electoral Act amendment to
s297A that unanimously passed the Legislative Assembly in August 2020. The
South Australian legislation has survived constitutional scrutiny in the South
Australian Supreme Court in Cameron v Becker.
22 Since 1997, there have been 315 complaints made to the South Australian
Electoral Commissioner regarding misleading or deceptive statements of fact and
27 determinations in favour of the complainant resulting in a retraction and/or
apology. 11 Many experts in the field of integrity believe that this model reflects
1 0F
the most appropriate mechanism to improve the integrity of claims made during
election campaigns in the Australian context.
23 This Bill follows a similar structure and complaints mechanism to these
existing examples in State and Territory legislation which have demonstrated
efficacy and normative impacts on the volume of misleading and deceptive
advertising during election campaigns.
Financial Impact
24 Nil
10
(1981) 147 CLR 169.
11
Hill, Baltutis and Douglas (2021) South Australia's Truth in election Advertising Laws: Basis
for a Model for the Rest of Australia, University of Adelaide, 60
Statement of compatibility with human rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
COMMONWEATLH ELECTORAL AMENDMENT (STOP THE LIES)
BILL 2021
No , 21
This Bill is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the Bill
1 This Bill amends the Commonwealth Electoral Act to prohibit misleading
and political advertising during Federal elections. The Bill prohibits advertising
that contains a statement of fact which is misleading or deceptive to a material
extent or is likely to mislead or deceive to a material extent. Further, the Bill
prohibits parties, candidates and campaigners from impersonating or passing off
material as being another participant. This seeks to address developments in
technology which make it easier to fraudulently portray a candidate.
2 The Bill creates a complaints process through the Australian Electoral
Commissioner who can order a retraction of the statement and/or an apology to
the effected party. Ultimately recourse to the Courts is available where a dispute is
unable to be satisfactorily settled by the Commissioner.
3 The main purpose of the Bill is to address the volume of misleading and
deceptive political advertising that occurs during Federal elections. Each election,
a number of advertisements and claims by candidates, their parties and associated
campaign groups are published that are untrue and designed to mislead or deceive
the voter about the position or platform of an opposing candidate. The result of
this has been an erosion of trust in political advertising and in politicians
generally. In addition, it reduces the efficiency of electoral participation.
4 Australia has had no shortage of examples of misleading and deceptive
advertising campaigns. The 'Mediscare' (2016) and 'Death Tax' (2019)
campaigns respectively sought to mislead electors about the alternate policies.
These campaigns were successful in provoking fear and suspicion of an alternate
policies and candidates. The veracity of these campaigns could be tested through
this legislation, the evidence which underpins them could be challenged through a
more detailed analysis of the statements of fact that substantiate the campaign.
The 2019 election also saw signs in Mandarin "mimicking the purple theme of the
Australian Election Commission" claiming that preferencing the Liberal Party is
the "correct way to vote". These prominent examples are the tip of the iceberg, the
advent of social media and the ability to micro target advertisements to particular
audiences demonstrate a far greater issue with the ability to regulate political
advertisements and truth.
5 Polling by The Australia Institute indicates that 9 in 10 Australians want
truth in political advertising legislated. 12 The Competition and Consumer Act
1 1F
regulates against misleading and deceptive advertising in trade and commerce.
The concept of preventing misleading and deceptive advertising is not foreign to
the private sector and should not be viewed as an attempt to curtail political
expression or freedom of speech, rather this Bill seeks to apply the same standards
to the political realm that is expected in respect to provision or sale of goods and
services.
6 This Bill is designed to implement safeguards in Australia against the
misleading and deceptive advertising.
Human rights implications
7 The amendments proposed in this Bill engage the following rights under the
International Covenant on Civil and Political Rights (ICCPR):
• the right to freedom of expression (Part III, Article 19, Section 2); and
• the right to take part in public affairs (Part III, Article 25).
The right to freedom of expression
8 The right to freedom of expression is contained in Article 19 of the ICCPR.
It includes the 'freedom to seek, receive and impart information and ideas of all
kinds,' regardless of medium (Article 19(1), ICCPR).
9 This right is engaged because the Bill seeks to limit freedom of expression
by making unlawful the printing, publication or distribution of certain content,
where that content is electoral matter within the meaning of section 4AA of the
Commonwealth Electoral Act.
10 The right to freedom of expression is not absolute and may be limited by
law, to the extent those limitations are necessary for the respect of the rights or
reputations of others; or the protection of, inter alia, public order (Article 19(3)
ICCPR).
11 In addition to the instances of misleading or deceptive conduct within
Australian elections outlined above, there is a developing global view that the
number of deep fakes and misinformation campaigns and their ability to penetrate
the electorate will only increase.
12
https://australiainstitute.org.au/report/we-can-handle-the-truth-opportunities-for-truth-in-
political-advertising/
12 Various international studies have demonstrated a causal link between
increasing volumes of fake news or disinformation and inefficient election
outcomes. For example, Zimmerman and Kohring (2020) demonstrate this link in
the 2017 German election, Jones-Jang et al (2020) on the US 2018 midterms and
Cantarella et al (2019) on the Italian elections.
13 The World Economic Forum has warned that deep fakes could be
weaponised in an election, citing examples of where they have been used in
election campaigns in Belgium, Malaysia and Gabon to destabilise governments
and political processes. 13 The Brookings Institute argues that deep fakes are well
12F
on their way to not only distort the democratic discourse but also erode trust in
public institutions at large. 14 13F
14 The increasing availability of targeted online advertising means such
conduct can also be distributed in mass to those people identified as being most
susceptible to it.
15 The work of the Australian Competition and Consumer Commission
through the Digital Platforms Inquiry highlights the need for greater regulation of
social media content to prevent the dissemination of misinformation. 15 The 14F
release in February 2021 of the Australian Code of Practice on Disinformation
and Misinformation provides for a voluntary self-regulatory mechanism by social
media companies of the accuracy of content distributed through their platforms. 16 15F
However, that code does not address the matter of misleading or deceptive
political advertising as there is no current legal mechanism to underpin the code in
that regard. This Bill provides that mechanism and would complement a
furthering of that work by providing a third-party complaints vehicle and an
enforcement mechanism to address the spread of misinformation by politicians
during election campaigns for personal gain.
16 The right of a person to freely express any view must be balanced against
the need to protect the broader public when exercising their voting franchise as
well as the faith of the public in our democratic institutions. The Bill does this by
only constraining the ability of a person to disseminate electoral advertising or
other content which either contains a statement of fact which is misleading or
deceptive to a material extent, or which wrongly passes itself off as having been
produced by a particular political actor.
17 The Commonwealth Electoral Act already contains a comparable, albeit
narrower, limitation on the freedom of expression in section 329(1), which makes
it unlawful for a person to print, publish or distribute any matter or thing that is
likely to mislead or deceive an elector in relation to the casting of a vote.
13
https://www.weforum.org/agenda/2020/10/deepfake-democracy-could-modern-elections-fall-
prey-to-fiction/
14
https://www.brookings.edu/research/is-seeing-still-believing-the-deepfake-challenge-to-truth-in-
politics/#cancel
15
https://www.accc.gov.au/publications/digital-platforms-inquiry-final-report
16
https://digi.org.au/disinformation-code/
18 The new limitations introduced by the Bill are further necessary for the
overall protection of the rights and reputations of political participants, along with
the protection of public order by limiting the proliferation of misinformation in
the political realm.
19 They do not otherwise impose any restrictions on individuals expressing
their political views, including opinions, or contributing to public discourse on
elections, government and political actors. In this way, the limitations proposed
by the Bill are reasonable and proportionate.
20 The Bill is compatible with the right to freedom of expression.
The right to take part in public affairs
21 The right to take part in public affairs is contained in Article 25 of the
ICCPR. This right provides that 'every citizen shall have the right and the
opportunity, without any of the distinctions mentioned in Article 2 and without
unreasonable restrictions, to take part in the conduct of public affairs.' None of
the distinctions mentioned in Article 2 of the IPCC are relevant to the provisions
of the Bill.
22 This right is closely linked to the right to freedom of expression and
accordingly, the Bill is engaged in a similar context. The Bill only seeks limit the
right to take part in public affairs, to the extent that participation involves the
dissemination of electoral matter that contains materially misleading or deceptive
factual statements, or which incorrectly passes itself of as having been produced
by a particular political actor.
23 These limitations are necessary, reasonable and proportionate for the
reasons outlined above. The Bill does not otherwise impose any restrictions on
individuals participating in the political realm.
24 The Bill is compatible with the right to take part in public affairs
Conclusion
25 The Bill is compatible with human rights because to the extent that it may
limit human rights, those limitations are reasonable, necessary and proportionate.
Notes on clauses
Part 1--Preliminary
Clause 1--Short title
1 Clause 1 specifies that the short title of the Bill, once enacted, will be the
Commonwealth Electoral Amendment (Stop the Lies) Act 2021.
Clause 2--Commencement
2 Clause 2 provides for the Bill to commence as an Act on the 28th day after
Royal Assent.
Clause 3--Schedules
3 Clause 3 clarifies the interaction of schedules in this Act with others in the
Commonwealth Electoral Act.
Schedule 1--Amendments
Part XXB Misleading and deceptive political advertising
4 Item 1 inserts the following provisions to amend the Commonwealth
Electoral Act 1918.
321J Definitions
5 Defines an election participant, what it means to engage in conduct and to
publish.
321K Electoral matter that is misleading or deceptive etc.
6 321K Electoral matter that is misleading or deceptive etc. specifies that a
person must not publish or distribute political advertisements that are misleading
or deceptive.
7 This section also prohibits the ability to impersonate or pass-off material as
being another person or published by another person. This is targeted at the use of
technology to mislead or deceive with the most extreme example being the use of
deep fakes to completely imitate the image or voice of a potential candidate to
deliberately mislead or deceive voters about what has been said.
321L Complaints
8 321L Complaints allows any person to make a complaint to the Electoral
Commissioner regarding a breach under 321K.
321M Powers of Electoral Commissioner
9 321M establishes the powers of the Electoral Commissioner to investigate
and take action to remedy the breach
321N Powers of courts
10 321N establishes the powers of the courts and referral powers. This includes
the ability of the Electoral Commissioner or a candidate who had made a
complaint to the Commissioner to make an application to the court to prosecute
the alleged breach. 321N(2) inserts clauses to prevent vexatious litigation of a
claim to limit the ability of litigants to abuse the court process for political or
personal gain.
321P Offence
11 Outlines the offence and remedies available which may include a fine of up
to 50 penalty units for individuals or 250 penalty units for a body corporate.
2 Section 329 (at the end of the heading)
12 Specifies that the clause is restrained to the casting of a vote as read by the
High Court of Australia in Evans v Crichton-Browne.
3 After subsection 383(10)
13 Clarifies that the injunctions provided for in s383 are not applicable to the
offences outlined in s321K as the remedies for those offences are entirely
contained in s321.