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Push Polling in Australia: Options for Regulation
George Williams
Consultant
Law and Bills Digest Group
Push polling is an election technique that has gained considerable notoriety.
The practice involves the deliberate spreading of baseless and malicious
allegations about a candidate standing for election. A poll is taken not
to discover voter attitudes, but to shape voter preferences by disseminating
false information. A United States organisation, the National Council
on Public Polls, has described the practice as a 'thoroughly unethical
political campaign technique'.
The technique first came to public attention in Australia in the 1994
Northern Territory election. The Labor Party alleged that push polling
cost it a significant number of votes and possibly even a seat in that
election. Since then, there have been allegations of push polling in the
1995 Queensland and New South Wales State elections and, at the federal
level, in the 1995 Canberra by-election. Push polling has been said to
have cost votes for the Labor Party and the Coalition, as well as New
South Wales State independent Peter Macdonald.
The taking of a push poll
Push polling may occur as follows. A political party arranges for a
poll of the intentions of voters in a marginal electorate. Under the guise
of what appears to be an authentic poll, but undertaken perhaps by a polling
company set up for the purpose, voters are asked whether they would be
prepared to vote for the candidate of the opposing party if they knew
that, for example, that candidate had rorted his or her travel fund. The
implication, which is utterly false, is that the candidate has acted corruptly.
For even greater effect, the poll might disseminate false information
relating to critical local issues, such as aircraft noise, or divisive
issues, such as abortion or euthanasia. When undertaken at the close of
a campaign, perhaps within 48 hours of voting, push polling can have a
devastating effect. The planting of a seed of doubt about the integrity
of a candidate, particularly when the information is given a veneer of
authenticity by its inclusion in a supposedly independent poll, can be
highly effective in swinging a person's vote from one candidate to another.
To take an example, it was alleged by the Northern Territory Opposition
that a poll was taken two days before the 1995 Territory election in which
voters were asked whether they would change their vote if they knew certain
'facts'. These 'facts' included that the Opposition would, if elected,
'introduce two sets of laws - one for blacks and another for whites'.
Allegations of push polling in the 1995 Canberra by-election led to
an inquiry by the Federal Parliament's Joint Standing Committee on Electoral
Matters. The Committee received submissions and took evidence in 1995.
The Committee was unable to hand down a report before the calling of the
1996 Federal election and the inquiry has not been revived.
Push polling is prevalent in the United States and has apparently been
used in contests across the nation. There the practice is not regarded
as a legitimate poll but as a 'telemarketing technique'. A proposal before
the United States Congress is that the Federal Compaign Act 1971 (US)
be amended to require the takers of a push poll to reveal in the taking
of the poll that it has been paid for by a candidate for office or a political
party.
Regulating push polling
The main problems associated with any regulation of push polling are
difficulties of enforcement and that of precisely defining the practice.
A law that banned push polling would also impinge upon the implied constitutional
freedom of political discussion recognised by the High Court. However,
a law that sought to regulate push polling would likely be valid if challenged
in the High Court so long as it was closely tailored to its aim and only
affected political discussion to the minimum extent necessary to achieve
this aim.(1) Like other electoral offences, the law could be drafted so
as to ensure free and fair elections, or, in the words of Justice Gaudron
in Muldowney v South Australia (1996) 136 ALR 18 at 31, to achieve the
'furthering or enhancing [of] democratic processes'.
Push polling is currently almost totally unregulated. No law specifically
targets push polling, nor is there any other provision that is likely
to be effective in stopping the practice. At best, an affected candidate
might be able to sue the takers of the poll for defamation. The closest
that the Commonwealth Electoral Act 1918 (Cth) comes to regulating push
polling is section 350. Section 350 states that it is an offence to 'make
or publish any false and defamatory statement in relation to the personal
character or conduct of a candidate'. The penalty is imprisonment for
six months, a $1,000 fine or both. A person can escape conviction if it
can be shown that he or she 'had reasonable ground for believing and did
in fact believe the statement to be true'.
Not only does section 350 not target push polling, but the section may
be inconsistent with the implied freedom of political discussion. Section
350 gives too little weight to freedom of political discussion. A person
can be convicted if he or she does not believe a statement to be true
or false but nevertheless has reasonable grounds for making it. Requiring
that a person actually believe that a statement is correct is arguably
too high a standard as it would include a journalist who publishes a story
not knowing whether it is in fact true but having a reasonable and non-malicious
basis for it.
The decision of the High Court in Theophanous v Herald & Weekly
Times Ltd (1994) 182 CLR 104 shows the type of criteria, or safety valve,
that could be built into any law seeking to proscribe or control push
polling. The critical feature is the need to avoid a blanket ban which
would punish a person where he or she is reasonably unaware of the harm
caused. A law would thus not be likely to infringe the implied freedom
if it made it an offence for a person to engage in polling where the person
has the intent to disseminate false or misleading information about a
candidate or party through the taking of a poll.
Endnotes
- See G. Williams 'The State of Play in the Constitutionally Implied
Freedom of Political Discussion and Bans on Electoral Canvassing in
Australia', ISR Research Paper , No. 10 199697
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