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Truth in Political Advertising Legislation in Australia
George Williams
Law and Bills Digest Group
Contents
Major Issues Summary
Introduction
The History of Truth in Political Advertising Legislation
in Australia
The Queensland Committee's Findings
Is Truth in Political Advertising Legislation Desirable and
Possible?
The Form and Limits of the Proposed Legislation
The Application of Truth in Political Advertising Legislation to
How-to-Vote Cards
Comparative Experience with Truth in Political Advertising Laws
New Zealand
Canada
United States
Conclusion
Endnotes
The potential impact of misleading or false statements made in the course
of electioneering is undoubted. Such campaigning obviously has an adverse
affect upon the public interest. It may distort election outcomes, divert
voter attention from substantive issues and may even discourage qualified
individuals from seeking election.
The question of whether Australian Parliaments should enact truth in
political advertising laws has been a recurrent theme in electoral law
in recent years. In the 1980s the Commonwealth Parliament dallied with
the idea-first introducing such laws, then quickly repealing them. There
have recently been suggestions that the Commonwealth Parliament's Joint
Standing Committee on Electoral Matters might again argue for the introduction
of such laws at the federal level. At the State level, South Australia
has introduced truth in political advertising laws, while Queensland is
on the track to doing so.
Momentum for change has been provided by the Legal, Constitutional and
Administrative Review Committee of the Queensland Parliament, which released
its Report on Truth in Political Advertising in December 1996.
After a review process involving the production of an issues paper, the
receipt of public submissions and the holding of a public hearing, a majority
of the Committee found that it is both possible and desirable to legislate
to prevent candidates from lying or misrepresenting facts during an election
campaign. Many of the Committee's conclusions were based upon reasoning
by analogy with the successful operation of section 52 of the Trade
Practices Act 1974 (Cth), which provides 'A corporation shall not,
in trade or commerce, engage in conduct that is misleading or deceptive
or is likely to mislead or deceive'. The Committee recommended that legislation
be introduced into Queensland to regulate the use of inaccurate and misleading
statements in election advertising. A minority of the Committee, while
supporting the principle of truth in political advertising, argued that
such legislation was inappropriate as it would be unworkable.
A review of the laws in place in the United States shows that various
State legislatures have attempted to enact truth in political advertising
laws or similar provisions. However, this has been made difficult and
may be frustrated by the guarantee of free speech in the First Amendment
to the United States Constitution. This guarantee and its interpretation
by the United States Supreme Court casts doubt on the constitutional validity
of truth in political advertising provisions in that country.
Australia also faces constitutional problems with seeking to regulate
truth in political advertising given the High Court's recognition that
the Australian Constitution contains an implied freedom of political discussion.
However, it would seem likely that the South Australian provision, which
survived constitutional scrutiny in the South Australian Supreme Court
in Cameron v Becker, as well as the provision suggested by the
Queensland Committee, are effective and valid models by which truth in
political advertising might be regulated.
The notion that the law should provide for truth in political advertising
is misleading. Any such law would be unworkable. Who is to say what is
the 'truth'? How could such a law be enforced? Instead, when the argument
is put for truth in political advertising legislation, it is really being
suggested that the law should penalise electoral statements that can be
shown to be false or misleading. No law could require that such statements
actually be 'true'.
The question of whether Australian Parliaments should enact truth in
political advertising laws has been a recurrent theme in electoral law
in recent years. In the 1980s the Commonwealth Parliament dallied with
the idea-first introducing such laws, then quickly repealing them. There
have recently been suggestions that the Commonwealth Parliament's Joint
Standing Committee on Electoral Matters might again argue for the introduction
of such laws at the federal level.(1) At the State level, South Australia
has introduced truth in political advertising laws, while Queensland is
on the track to doing so.
Momentum for change has been provided by the Legal, Constitutional and
Administrative Review Committee of the Queensland Parliament, which released
its Report on Truth in Political Advertising in December 1996.(2)
After a review process involving the production of an issues paper, the
receipt of public submissions and the holding of a public hearing, a majority
of the Committee found that it is both possible and desirable to legislate
to prevent candidates from lying or misrepresenting facts during an election
campaign. The Committee recommended that legislation be introduced into
Queensland to regulate the use of inaccurate and misleading statements
in election advertising. A minority of the Committee, while supporting
the principle of truth in political advertising, argued that such legislation
was inappropriate as it would be unworkable.
It was not until the passing of the Commonwealth Electoral Legislation
Amendment Act 1983 (Cth) that the first provision prohibiting untrue
advertising was enacted.(3) The new section 116(2) [subsequently section
329(2)] of the Commonwealth Electoral Act 1918 (Cth) stated:
A person shall not, during the relevant period in relation
to an election under this Act, print, publish, or distribute, or cause,
permit or authorise to be printed, published or distributed, any electoral
advertisement containing a statement:
- that is untrue; and
- that is, or is likely to be, misleading or deceptive.
Section 116(6) provided that it was a defence if the person was able
to prove that he or she 'did not know, and could not reasonably be expected
to have known' that the electoral advertisement contained an offending
statement. A person convicted of an offence under the provision was liable
to a fine not exceeding $1 000 or imprisonment of up to 6 months or both,
while a corporation would be liable to a fine of up to $5 000.
Section 329(2) was repealed in 1984 upon the recommendation of the Commonwealth
Parliament's Joint Select Committee on Electoral Reform.(4) A majority
of the Committee expressed the following criticisms of the section:
- While fair political advertising is a legitimate objective, it is
not one properly to be sought through legislation.(5) Political advertising
involves 'intangibles, ideas, policies and images'(6) which cannot be
subjected to a test of truth, truth itself being inherently difficult
to define.(7)
- As evidence was given that even predictions and opinions may imply
statements as to present fact, and thus be subject to the section, the
section was considered to be so broad as to be unworkable.(8)
- The section would have a disproportionate impact on publishers, who
would need to seek legal advice before publishing. This would inhibit
political advertising and thus limit the information received by the
public.(9)
- The Committee expressed concern that injunctions might be misused
to disrupt the campaigns of other parties and candidates. In the context
of an election campaign the grant of an interim injunction could have
the same effect as a final order.(10)
Consequently, the final recommendation of the Committee was as follows:
the Committee concludes that even though fair advertising is
desirable it is not possible to control political advertising by legislation.
As a result, the Committee concludes that s 329(2) [161(2)] should be
repealed. In its present broad scope the section is unworkable and any
amendments to it would be either ineffective, or would reduce its scope
to such an extent that it would not prevent dishonest advertising. The
safest course, which the committee recommends, is to repeal the section
effectively leaving the decision as to whether political advertising is
true or false to the electors and to the law of defamation.
A similar view was repeated in 1994 by the Joint Standing Committee
on Electoral Matters in its Report of Inquiry into the Conduct of the
1993 Federal Election and Matters Related Thereto.(11)
There have been several unsuccessful attempts to reinsert section 329(2)
or a like provision into the Commonwealth Electoral Act since its
repeal in 1984.(12) In 1995, attempts were made to introduce provisions
similar to the old section 329(2) into Commonwealth(13) and Queensland(14)
law. In Queensland the move had the support of the Electoral and Administrative
Review Commission's recommendations in 1991(15) and 1992(16) that controls
over political advertising be imposed. However political events in 1996
saw both the Commonwealth and Queensland Bills lapse.
Today, only South Australia has truth in political advertising legislation
in force. Section 113(1) of the Electoral Act 1985 (SA) is in quite
different terms to the old section 329(2) in its focus upon misstatements
of fact. Section 113(1) reads:
Where-
- an electoral advertisement contains a statement purporting to be
a statement of fact; and
- the statement is inaccurate and misleading to a material extent,
a person who authorised, caused or permitted the publication of the
advertisement shall be guilty of an offence.(17)
It is a defence for the person to prove that he or she 'took no part
in determining the contents of the advertisement' and that he or she 'could
not reasonably be expected to have known that the statement to which the
charge relates was inaccurate and misleading'. Section 113(1) has supported
a successful prosecution and survived a challenge to its constitutional
validity in Cameron v Becker.(18)
While section 113(1) of the South Australian Electoral Act is
the only provision currently in force that might be called a truth in
political advertising provision, there are laws in each other Australian
jurisdiction that make it an offence to mislead an elector in relation
to the casting of his or her vote. Such laws are phrased slightly differently
in the various jurisdictions, but all refer to statements in electoral
matter. For example:
- Section 151A(1)(b) of the Parliamentary Electorates and Elections
Act 1912 (NSW) makes it an offence for a person to 'print, publish
or distribute any "how-to-vote" card, electoral ad, notice,
handbill, pamphlet or card containing any untrue or incorrect statement
intended or likely to mislead or improperly interfere with any elector
in or in relation to the casting of his vote'.
- Section 209(1) of the Electoral Act 1985 (Tas) prohibits statements
'intended or likely to mislead or improperly interfere with an elector
in or in relation to the recording of his vote'. Section 163(1) of the
Electoral Act 1992 (Qld) is in similar terms except that
it is expressed as 'intended or likely to mislead an elector in relation
to the way of voting at the election'.
- Section 267B(1) of the Constitution Act Amendment Act 1958
(Vic) reads: 'A person shall not, during the relevant period in relation
to an election under this Act, print, publish or distribute, or cause,
permit or authorise to be printed, published or distributed, any matter
or thing that is likely to mislead or deceive an elector in relation
to the casting of the vote of the elector'. Sections 191A(1) of the
Electoral Act 1907 (WA) and 329(1) of the Commonwealth Electoral
Act 1918 (Cth) are in like terms.
- Section 106© and (d) of the Electoral Act 1993 (NT) prohibits
statements 'intended to or likely to mislead or improperly interfere
with an elector in or in relation to the casting of his vote'.
- Section 297(1) of the Electoral Act 1992 (ACT) reads: 'A person
shall not disseminate, or authorise to be disseminated, electoral matter
that is likely to mislead or deceive an elector about the casting of
a vote'.
In Evans v Crichton-Browne(19) the High Court held that the words
'in or in relation to the casting of his vote' in section 161(e) of the
Commonwealth Electoral Act were limited to 'the act of recording
or expressing the political judgment which the elector has made rather
than to the formation of that judgment'.(20) This may mean that each of
the above provisions can only have a minimal impact on preventing false
and misleading statements of fact during election campaigns. If interpreted
in the same way as section 161(e), they would only relate to statements
that affect the actual physical casting of a person's vote and not to
statements that affect the formation of a political judgment by the elector.
Is Truth in Political Advertising Legislation Desirable and Possible?
In its December 1996 Report(21) the Legal, Constitutional and Administrative
Review Committee of the Queensland Parliament sought to address many of
the concerns posed by the 1984 Report of the Joint Select Committee on
Electoral Reform by reasoning from the operation of section 52 of the
Trade Practices Act 1974 (Cth).(22) Thus, for example, the argument
that the electorate is the most appropriate body to determine the truth
or otherwise of political claims was undermined by the reminder that it
was once also alleged that the market would operate to allow consumers
to ascertain the truth about products. The recognition that the information
required to make appropriate decisions is usually privileged applies equally
to political and commercial advertising. Similarly, the assertion that
political statements 'promote intangibles, ideas, policies and images'(23)
which cannot be regulated was countered with evidence that section 52
has been successfully interpreted to regulate vague and complex subject
matter. For example, under section 52 tests based on the state of mind
of the person making the statement exist to assess whether opinions and
predictions are misleading or deceptive, while statements which are clearly
exaggerations have been labelled 'puffs' and are not subject to the law.
The Committee could not, however, completely equate commercial and political
advertising. It recognised a primary difference between commercial and
political advertising: freedom of political communication is protected
by the Constitution,(24) while commercial advertising is not.(25) Following
the analysis of the South Australian provision by the Full Court of the
Supreme Court of South Australia in Cameron v Becker, the Committee
was confident that legislation preventing misleading and inaccurate statements
of fact in political advertising 'would be an acceptable and proportional
intrusion'(26) on the constitutional freedom. On the other hand, the Committee
stressed that a political candidate must be free to express his or her
opinion irrespective of 'how misguided or reprehensible the majority believe
it to be'.(27) Thus, provided an opinion or prediction is not specifically
justified by inaccurate or misleading facts, its expression should not
be regulated. The Committee concluded that regulating opinions or predictions
would go beyond a proportional intrusion on the freedom of political discussion
and may be unconstitutional. Consequently, only regulation as to false
and misleading statements of fact was considered both possible and desirable.
The Form and Limits of the Proposed Legislation(28)
Of all of the models examined by the Queensland Committee-the former
section 329(2), its slight variations in the 1995 Queensland and Commonwealth
Bills, the South Australian provision and section 52 of the Trade Practices
Act-it was the South Australian provision which most closely conformed
to the Committee's desired objectives. That provision is limited to statements
of fact and is thus more objectively determinable, and has already survived
a constitutional challenge. In addition, the Committee found that it is
the most easily administered, an attribute which could not be overestimated
given the difficulties with truth in political advertising legislation.
The Committee thus recommended that a provision in terms of section 113(1)
of the Electoral Act 1985 (SA) be inserted into the Electoral
Act 1992 (Qld).
Rather than formulate its own general defence, the Committee decided
that the defences provided in Part 1 Chapter V of Queensland's Criminal
Code, including the defence of honest and reasonable mistake of fact,
were sufficient. One exception was in relation to the liability of
third party publishers and distributors. The Committee drafted a provision
excluding them from liability if they could establish that they 'took
no part in determining the contents of the advertisement or how-to-vote
material' and 'could not reasonably be expected to have known' that the
statement was 'inaccurate and misleading'.
The debate in South Australia on the appropriate remedies for the breach
of truth in political advertising legislation(29) was also reflected in
the Queensland Committee's deliberations. The 1984 Report of the Joint
Select Committee on Electoral Reform recommended against the use of injunctions
due to the possibility that they would be used by candidates to unjustly
disrupt the advertising campaigns of opposing candidates, while obtaining
additional publicity for themselves; an argument which was considered
persuasive in South Australia.(30) Although the Queensland Committee recognised
this, it concluded that injunctions were still a valuable remedy for limiting
the effects of false and misleading advertising. On the other hand, the
Committee stated that corrective advertising had the potential to disproportionately
affect the outcome of an election. Consequently, this type of remedy was
limited to a judicial declaration of falsity. Overall, the Committee considered
that fines of up to 40 penalty units for individuals and of up to 200
penalty units for corporations,(31) declarations of falsity, injunctions,
damages and, if the offending advertisement could be shown to have influenced
an election outcome, a fresh election, provided sufficient protection
to disadvantaged candidates.
The Committee also found that truth in political advertising legislation
in Queensland should not be limited to State elections but should be extended
to cover local elections. In reaching this conclusion, it noted that the
South Australian provision is substantially repeated in its Local Government
Act 1934 (SA) and that the Local Government Act 1993 (Qld)
currently mirrors most of the offence provisions under the Queensland
Electoral Act. The Committee further decided that it was appropriate
to extend truth in political advertising legislation to the conduct of
referendums by amending the Referendums Bill 1996 (Qld).
The Application of Truth in Political Advertising Legislation to How-to-Vote
Cards
The Queensland Electoral Act imposes few limits on the handing
out of election material, including how-to-vote cards, on polling day.(32)
The Committee concluded that how-to-vote cards do play an important role
in the election process and should be retained. Indeed, it was suggested
that any attempt to ban them or seriously restrict their availability
may infringe the implied constitutional freedom of political discussion.(33)
The Committee favoured combating problems associated with the use of how-to-vote
cards by extending truth in political advertising provisions to them.
They proposed that a provision in similar terms to the following be included
in any truth in political advertising legislation enacted in Queensland:
Where-
(a) any how-to-vote material contains a statement purporting to be
a statement of fact and the statement is inaccurate and misleading to
a material extent; or
(b) any how-to-vote material purports or represents to be the how-to-vote
material of another entity and such representation is misleading or
is likely to mislead
a person who authorised, caused or permitted the publication, or distributed,
the how-to-vote material shall be guilty of an offence.
Comparative Experience with Truth in Political Advertising Laws
New Zealand
There are no provisions in the Electoral Act 1993 (NZ) that deal
with false and misleading advertising, or making false statements which
may mislead voters in the casting of their votes. However, under that
Act all electoral advertisements must be authorised.
Canada
In Canada, the relevant statute is the Canada Elections Act 1990
(Canada). It has various sections relevant to the issue, but no equivalent
provision to section 113(1) of the South Australian Electoral Act.
For example, section 48 establishes an advertising blackout period on
polling day and the previous day; section 261 requires that all advertisements
must be authorised; while section 264 provides that 'every person who,
before or during an election, knowingly makes or publishes any false statement
of fact in relation to the personal character or conduct of a candidate
is guilty of an illegal practice and of an offence'.
United States
The First Amendment to the United States Constitution provides that:
'Congress shall make no law … abridging the freedom of speech'. The
United States Supreme Court has given a robust interpretation to this
right. This obviously restricts the scope for legislatures in the United
States to pass truth in advertising laws, particularly given that the
First Amendment has its 'fullest and most urgent application precisely
to the conduct of campaigning for political office'.(34) For example,
the decision of the Supreme Court in New York Times v Sullivan(35)
prevents a person from recovering for defamatory statements made in campaigning
unless such statements can be shown to have been made with 'actual malice'.(36)
By 'actual malice' the Court meant a statement published with knowledge
of its falsity or with reckless disregard as to its truth.(37) To take
a further example, in Mills v Alabama(38) the United States Supreme
Court found unconstitutional a ban on election speech on the day of polling.
Despite the width of the guarantee of free speech in the United States
Constitution, several States prohibit the making of certain types of false
statements, such as those that impact upon the reputation of a candidate,(39)
in political campaigns.(40) However, such statutes are potentially subject
to constitutional difficulties.(41) One such provision that has been suggested
might not survive constitutional scrutiny is a Massachusetts law that
provides:
No person shall make or publish, or cause to be made or published,
any false statement in relation to any candidate for nomination or election
to public office, which is designed to aid or to injure or defeat such
candidate.(42)
A significant first amendment issue in the United States is the constitutionality
of disclosure statutes, that is, legislative provisions prohibiting anonymous
political advertising and campaigning. Recently, in McIntyre v Ohio
Elections Commission(43) the Supreme Court struck down an Ohio disclosure
statute as being unconstitutional. Reactions to the McIntyre Case
by United States commentators reflect a growing concern about the increasing
use of deceptive negative advertising during campaigns and the ineffectiveness
of the law in preventing it.(44) This is grounded in a fear that the current
law fails to protect candidates, and in turn the public, yet any more
severe sanctions would face constitutional difficulties.
In advocating the regulation of truth in political advertising, the
Legal, Constitutional and Administrative Review Committee of the Queensland
Parliament focused on the aspirational impact of such legislation and
rejected 'the logic that says that since we cannot stop all dishonest
intent therefore we will not try to stop any'.(45) In doing so, and in
drafting recommended provisions, the Committee decided to err on the side
of caution. The majority's main concern was a pragmatic and sensible one:
to develop a standard likely to withstand both political and legal scrutiny.
They did this by developing a model that penalises false and misleading
statements of fact but is ameliorated by a defence of honest and reasonable
mistake of fact. The model put forward by the Committee is designed to
deter blatant examples of such conduct rather than to place a blanket
ban on any speech likely to mislead or deceive voters in their electoral
choices. Free speech in the electoral process is restricted only so far
as is necessary to achieve this aim.
An important part of the Committee's reasoning relied upon doctrines
and experience underpinning section 52 of the Trade Practices Act
(TPA). The Committee's reliance upon section 52 to support, by analogy,
the case for truth in political advertising legislation in Queensland
was perhaps the most important reason why it reached the opposite conclusion
to the 1984 Report of the Joint Select Committee on Electoral Reform.
Another significant reason for the different approach taken by the Queensland
Committee is the recent rise of allegations of 'dirty tricks' in election
campaigning. One prominent example is 'push polling', which was allegedly
used in the 1995 Queensland State election.(46) The rise of such practices
has perhaps been a factor in what some have seen as the deepening cynicism
of the electorate towards the political process and highlights the need,
tapped into by the Committee, for ethical standards in electioneering.
Reliance upon section 52 of the TPA by the Queensland Committee is reflected
in the remedies proposed for breaches of a truth in political advertising
provision. Like those available where section 52 is breached,(47) the
remedies offer considerable leeway for a court and include the possibility
of both injunctions and damages. However, the Queensland Committee went
beyond the remedies offered under section 52 in one important respect.
While a breach of section 52 does not give rise to an offence, breaches
of the truth in political advertising legislation could incur significant
fines. This can be justified by the need for an effective deterrent for
the breach of such a provision as well as by the potentially irreversible
consequences of such a breach.
The Queensland Report may be commended for the approach it has taken.
It can be argued that their reasoning and explicit caution based upon
the need to respect the constitutional freedom of political discussion
makes their approach a compelling one. The Report should contribute to
the setting of higher standards of debate and electoral practice in Queensland.
Though any provision mandating truth in political advertising will be
difficult to enforce, its wider impact upon the political culture should
not be discounted. Such legislation has the potential to have a powerful
impact in shaping political ethics and campaigning practices in Australia.
- Millett, M. 'Crackdown on Political Liars' Sydney Morning Herald,
28 January 1997.
- Legal, Constitutional and Administrative Review Committee, Report
on Truth in Political Advertising (December 1996, Report No. 4). The
author of this paper made a submission to the Committee and appeared
before it in Brisbane on 30 August 1996.
- Cf Commonwealth Electoral Act 1918 (Cth), section 161(e); Evans v
Crichton-Browne (1981) 147 CLR 169.
- Joint Select Committee on Electoral Reform, Second Report (August
1984).
- Ibid at para 2.78.
- Ibid at para 2.79.
- Ibid at paras 2.502.54.
- Ibid at paras 2.552.67.
- Ibid at para 2.80.
- Ibid at paras 2.682.77.
- Joint Standing Committee on Electoral Matters, Report of Inquiry into
the Conduct of the 1993 Federal Election and Matters Related Thereto
(November 1994): 109
- Commonwealth Electoral Amendment Bill 1987 (Cth); Commonwealth Electoral
and Referendum Amendment Bill 1989 (Cth); Commonwealth Electoral (Printing,
Publishing and Distribution of Electoral Matters) Amendment Bill 1990
(Cth); Political Broadcasts and Political Disclosures Bill 1991 (Cth).
- Electoral and Referendum Amendment Bill 1995 (Cth).
- The Electoral Amendment Bill 1995 (Qld) sought to introduce a provision
similar to the old section 329(2) except that the requirement was to
be that the statement had to be untrue OR misleading or deceptive.
- Electoral and Administrative Review Commission, Report on the Review
of the Elections Act 19831991 and Related Matters (December 1991),
Chapter 11.
- Electoral and Administrative Review Commission, Report on Investigation
of Public Registration of Political Donations, Public Funding of Election
Campaigns and Related Issues (June 1992), Chapter 5.
- See Electoral (Miscellaneous) Amendment Bill 1996 (SA).
- (1995) 64 SASR 238.
- (1981) 147 CLR 168.
- Ibid at 207208.
- Legal, Constitutional and Administrative Review Committee, Report
on Truth in Political Advertising (December 1996, Report No 4).
- Section 52 provides that 'A corporation shall not, in trade or commerce,
engage in conduct that is misleading or deceptive or is likely to mislead
or deceive'. Although section 52 has a limited operation within each
State according to the ambit of Commonwealth power, a like provision
has been enacted by each State and by the Australian Capital Territory
and the Northern Territory. See, for example, Fair Trading Act 1987
(NSW), section 42; Fair Trading Act 1989 (Qld), section 38.
- Joint Select Committee on Electoral Reform, , Second Report (August
1984): p 26.
- See Nationwide News v Wills (1992) 177 CLR 1; Australian Capital Televisions
v Commonwealth (1992) 177 CLR 106; Theophanous v Herald and Weekly Times
Ltd (1994) 182 CLR 211; Stephens v West Australian Newspapers Ltd (1994)
182 CLR 104. See generally on the application of the implied freedom
of political discussion to electoral law, G. Williams, The State of
Play in the Constitutionally Implied Freedom of Political Discussion
and Bans on Electoral Canvassing in Australia Research Paper No. 10
19961997, (Commonwealth Parliament, Information Research Services,
11 February 1997).
- The Committee cited Tobacco Institute v AFCO (1993) 113 ALR 257 at
282283 per Hill J. See also Theophanous v Herald and Weekly Times Ltd
(1994) 182 CLR 211 at 124125 per Mason CJ, Toohey and Gaudron JJ.
- Legal, Constitutional and Administrative Review Committee, Report
on Truth in Political Advertising (December 1996, Report No. 4): 29.
- Ibid at 28.
- For the full text of the provision, see ibid at 54.
- Note that the Electoral (Miscellaneous) Amendment Bill 1996 (SA) attempts
to provide for the withdrawal of an offending advertisement and the
publication of a retraction.
- The Queensland Committee reported that the clause permitting injunctions
in the South Australian legislation was removed before the legislation
was passed [Legal, Constitutional and Administrative Review Committee,
Report on Truth in Political Advertising (December 1996, Report No.
4): 12].
- Under the Penalties and Sentences Act 1992 (Qld), section 5, each
penalty unit would be equivalent to $75.
- Cf Electoral Act 1992 (Qld), section 166.
- For an example of a provision restricting the handing out of how-to-vote
cards that might infringe the constitutional freedom, see Electoral
Act 1992 (ACT), section 303. On this point, see G. Williams, op.cit.
- Monitor Patriot Co v Roy 401 US 265 at 272 (1971).
- 376 US 254 (1964).
- Ibid at 279280.
- Ibid at 280. Cf the weaker test established in Australian by the majority
in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104.
- 384 US 214 (1966).
- Mississippi Election Code, 2315875 (1990)
- L. Con, 'Mississippi Mudslinging: The Search for Truth in Political
Advertising' (1994) 63 Mississippi Law Journal 507 at 510511.
- See, for example, ibid at 515.
- P.F. May 'State Regulation of Political Broadcast Advertising: Stemming
the Tide of Deceptive Negative Attacks' (1992) 72 Boston University
Law Review 179 at 200201.
- 115 S Ct 1511 (1995).
- T.H. Dupree Jr, 'Exposing the Stealth Candidate: Disclosure Statutes
after McIntyre v Ohio Elections Commission,' (1996) 63 University of
Chicago Law Review 1211; M.A. Whitt, 'McIntyre v Ohio Elections Comm'n:
"A Whole New Boutique of Wonderful First Amendment Litigation Opens
its Doors"', (1996) 29 Akron Law Review 423.
- Joint Select Committee on Electoral Reform, Second Report (August
1984): 47 per Senator Macklin.
- There have also been allegations of 'push polling' in the 1994 Northern
Territory election, the 1995 New South Wales State election and, at
the federal level, in the 1995 Canberra by-election. See Joint Standing
Committee on Electoral Matters, Inquiry into Push PollingSubmissions;
G. Williams, Push Polling in Australia: Options for Regulation (Research
Note No. 36 199697) Commonwealth Parliament Information and Research
Services, 4 march 1997 .
- Trade Practices Act, Pt VI.
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