Australia: The 2020 Queensland state election: Misleading electoral advertising

With the Queensland State Election date of 31 October 2020 fast approaching, members of the public will inevitably be inundated with a wealth of ‘election matter' distributed across various advertising platforms.  ‘Election matter' is a phrase used to describe the diverse range of mediums which intend to influence the way electors vote and subsequently, the outcome of an election.

Regardless of their political orientation, all members of the public are vulnerable to electoral advertising which can have the potential to mislead them as voters, and in turn have serious impacts not only on the political environment but also the legal and financial circumstances under which people live, and diverse industries and businesses operate.

This article serves as a guide to the 2020 Queensland State Election by outlining the options available for those who think they may have come across misleading advertising during the election period, and those who are themselves advertising.

What does the law say about misleading electoral advertising?

The Electoral Act 1992 (Qld) (the Act) regulates State elections in Queensland and outlines electoral advertising responsibilities.

Section 185 of the Act states that it is an offence during the election period for a person to:

• print, publish, distribute or broadcast anything that is intended or likely to mislead an elector in relation to the way of voting at the election;
• (for the purpose of affecting the election of a candidate) knowingly publish a false statement of fact regarding the personal character or conduct of the candidate; or
• print, publish, distribute or broadcast by television any representation or purported representation of a ballot paper for use in the election if it is likely to induce an elector to vote other than in accordance with the Act.

When does this apply for the State election?

Section 185 only applies to ‘election matter' printed, published or distributed for the upcoming State election between 6 October 2020 and 31 October 2020 (being the formal election period which commences once the writ has been issued).

What constitutes misleading advertising?

Must be more than a mere possibility

The case of Goss v Swan¹  concerned an application for an interim injunction to restrain the Labor Party campaign director and his agents from displaying certain signs near the Liberal party's voting booths.  The signs read “A vote for the Liberals is a vote for the Nationals” which had the purported effect of suggesting that the National Party would benefit as an indirect result of voting Liberal.  The applicant argued that the “cryptic and unexplained” form of the message was likely to influence uninformed and naive electors, however the argument was rejected by the Supreme Court, which held that the advertisement created a ‘mere possibility' rather than a ‘likelihood' of misleading an elector.

This notion was affirmed in the more recent case of Minnikin v Chrisholm² .  Here, the applicant claimed that booth wrap which read “Remember to number every square”, with signage similar to that of the Australian Electoral Commission, was intended to mislead electors in relation to their ‘way' of voting at the election.  The findings of this case confirmed that there must be a likelihood of misleading, rather than a mere possibility.  The booth wrap was not sufficient to amount to a ‘likelihood' of electors being misled.

This is to be contrasted with the recent decision of the Full Federal Court, sitting as the Court of Disputed Returns.  Although in Garbett v Liu³ the Court dismissed petitions challenging the validity of election results in two Federal electorates in Victoria, the Court did find that various signs which directed Mandarin speakers of the “Correct voting method”, “The right way to vote” or “The correct way to vote” (but in fact showed examples of how to vote for a particular party) were likely to mislead an elector in relation to casting a vote.

Similarly, in Liberal Party of Australia (Victorian Division) v Rae⁴ , the Court of Appeal was satisfied that how-to-vote cards identifying an endorsed candidate, who had subsequently been disendorsed, were likely to mislead or deceive an elector in casting a vote.

Must be likely to affect the process of casting the vote

In Peebles v Honourable Tony Burke⁵ , the Federal Court helped to clarify the limited scope of misleading and deceptive conduct in the context of elections.  In this case, a leaflet (with the Commonwealth Coat of Arms printed at the top) containing instructions on eligibility for early voting and explanations on how to submit a form for the postal vote, was held to not be a matter or thing likely to mislead electors in casting a vote.

In dismissing the petition, the Court explained that the prohibition relates to misleading advertising concerning matter that would be likely to affect the process of casting a vote rather than the formation of the political judgment about how the vote will be cast.

Getting it right

Well-organised political parties generally have – as part of the ‘machine' – systems in place to minimise the risk that their ‘election matter' will contravene the Act.  That doesn't mean they always get it right.  If you are concerned about election matter you have seen published that might affect you or your business, see below at What can you do.

It is, though, not only large political parties that publish election matter.  Anyone is entitled to engage in political advertising provided they do so in a compliant fashion.  There are potentially consequences for committing an offence against prohibitions contained in the Act.  A breach of the prohibition against publishing election matter that is intended to or is likely to mislead carries with it a maximum penalty of 40 penalty units (currently equivalent to $5,338) for each publication.

If you intend to publish election matter, it is worth having it independently reviewed before doing so.

What can you do if you see a possible breach during the election period?

1) Notify the Electoral Commission Queensland (ECQ)

The ECQ is the body responsible for ensuring compliance during the State election period.  If considered appropriate, the ECQ will take compliance action against misleading advertising, most commonly by taking down signage and issuing warnings or fines.

2) Injunction

Both the ECQ and candidates in the State election are able to apply to the Supreme Court for an injunction under Section 196 of the Act against a person who has engaged, is engaging or is proposing to engage in any activity that contravenes the Act.  An injunction can prohibit certain conduct from occurring or require certain conduct to be performed.

Unfortunately, an elector is not independently able to apply for an injunction and should either notify the ECQ as stated above or notify a candidate in the election.

Footnotes

¹ [1994] 1 Qd R 40.

² [2015] QSC 18.

³ [2019] FCAFC 241.

⁴ [2019] VSCA 13.

⁵ [2010] FCA 838.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.