Regulating Truth and Lies in Political Advertising: Implied Freedom Considerations

Abstract

Contemporary politics is increasingly described as ‘post-truth’. In Australia and elsewhere, misleading or false statements are being deployed in electoral campaigning, with troubling democratic consequences. Presently, two Australian jurisdictions have laws that require truth in political advertising. There have been proposals for such regulation in several more, including at the federal level. This article considers whether these laws are consistent with the implied freedom of political communication in the Australian Constitution. It suggests that the existing provisions, in South Australia and the Australian Capital Territory, would likely satisfy the proportionality test currently favoured by the High Court of Australia. However, the article identifies several implied freedom concerns that could prevent more onerous limitations on misleading political campaigning. Legislatures therefore find themselves between a rock and a hard place: minimalistic regulation may be insufficient to curtail the rise of electoral misinformation, while more robust laws risk invalidity under the Constitution.