Political advertising experts are calling for tougher regulations on political advertising after the Australian Electoral Commission received almost 500 complaints during the 2019 federal election.
But an AEC spokesperson told SBS News that only 87 of those complaints - less than 20 per cent - were found to be unlawful, all of which were "swiftly addressed".
The commission did not take punitive action against any of the offenders, instead issuing warnings to those found in breach of standards.
"The AEC is fully prepared, willing and able to use the powers given to it under the Electoral Act, but in almost all cases a faster way to obtain compliance on these matters is by warning the people or organisations responsible for the electoral communications without having to resort to the courts," the spokesperson said.
Political marketing expert from the Australian National University Dr Andrew Hughes said that while the 2019 federal election had been particularly "nasty", there was almost nothing stopping political parties and candidates from attacking each other.
"There's a real sense that these sorts of actions and smear campaigns are legal, but they're not - if I were to go and take the same ad out against my neighbour, I can guarantee you I'd be sued," he told SBS News.
A paid Twitter advertisement from 'Unemployed in QLD' targetting Tanya Plibersek. Source: Twitter 'UnemployedinQLD'
"But the only thing stopping someone from being really nasty during an election is common law – like defamation law – there’s actually nothing in political law right now when it comes to campaigning to stop anything nasty going on."
Who regulates what?
As the law stands, there is no requirement at all for political advertising to be truthful.
The AEC's powers cover ensure sure political advertisements are properly authorised and do not mislead voters about how to cast their vote - for example, promoting optional preferential voting when full preferential voting is required.
But the AEC cannot regulate the content of political advertising.
"A common misconception is that the Electoral Act and, therefore the AEC, regulates truth in electoral communications," the spokesperson said.
"It does not and has no power to do so."
The Australian Communications and Media Authority enforces the advertising blackout period and ensures all parties have fair access to broadcast time.
But it also has no authority to deal with complaints about false claims or defamatory statements in advertising.
An ACMA spokesperson said the regulator had recieved four complaints about political adverting since 11 April - three relating to the blackout period, and one about the tagging of political ads.
There is no go-to regulator for online content, and ACMA's blackout period does not apply to social media.
An AEC spokesperson said about 90 of the 500 complaints the commission received related to .
Labor condemned this unclaimed flyer targeting Western Australia Labor MP Anne Aly as racist. Source: ABC Australia
Dr Hughes said he wanted to see an independent authority created to ensure the next election sees a rise in standards.
"First, we need to bring in a political communications act which covers everything communications-wise – be it social media, be it digital, be it online, offline, or robocalls," he said.
"Hopefully, one of the outcomes of this election is we'll have an independent commission or organisation set up to approve all election advertising – that doesn’t mean it’ll stop it, it just means someone might actually pull them up and say 'You can’t say that'."
Dr Hughes said the problem with relying on defamation law to protect candidates from smear campaigns was that taking action was often more trouble than it is worth.
"Legal action takes so long to actually resolve, but it can also highlight the smear campaign to people who weren't originally aware of it, and before you know it, that one little message most people had missed now becomes publicised to a far wider audience," he said.
Targetting ethnic communities
The 2019 federal election campaign also saw a spike in advertisements targeting specific ethnic communities in their own languages.
Pamphlets written in Chinese, Arabic, and English claimed Labor would turn children 'homosexual' and Labor took to hosting .
Dr Hughes said not all of the in-language material was misleading, but it certainly had a greater potential to be.
A poster distributed through Hurstville in Sydney's south claimed a vote for Labor would make children homosexual. Source: Supplied
"The positive is that it’s recognition that we’ve become a more diverse society, that not everyone’s going to speak English as their first language, so we need to reach and engage with people who otherwise would be disengaged for the entire process," he said.
"But the negative is it can leave the door open for running a very effective misinformation campaign, because you can play on people's lack of knowledge and fly under the radar."
He said in Chisolm did exactly that on polling day.
Screenshot of a live chat Q and A with Jennifer Yang and Bill Shorten. Source: Supplied
Written in the same font and colour as the AEC signage next to it, the Chinese captions told voters "The correct way to vote is to put a number one next to the Liberals and number every other box".
The AEC said the signs were properly authorised and therefore not in breach, adding "While the AEC uses purple in our signs, the AEC can’t prohibit others doing so".
