Government advertising may be legal, but it's corrupting our electoral process

‘Public resources have routinely been abused for electoral advantage.’

Government advertising may be legal, but it's corrupting our electoral process

Joo-Cheong Tham, University of Melbourne

The Coalition Government’s use of taxpayer money for political advertising – as much as $136 million since January, according to Labor figures - is far from an aberration in Australia. It is part of a sordid history in which public resources have routinely been abused for electoral advantage.

For example, the Coalition governments of Tony Abbott and Malcolm Turnbull spent at least $84.5 million on four major advertising campaigns to promote their policies and initiatives with voters. The ALP governments of Kevin Rudd and Julia Gillard spent $20 million on advertising to promote the Gonski school funding changes and another $70 million on a carbon tax campaign. Going further back, the Coalition government under John Howard spent $100 million on its WorkChoices and GST campaigns.

This is also a history in which hypocrisy is not hard to find.

When in opposition, Rudd condemned partisan government advertising as “a cancer on our democracy”. His government, however, exempted its $38 million ad campaign on the mining super profits tax from the government guidelines put in place two years earlier.

In 2010, while an opposition MP, Scott Morrison decried such spending as “outrageous”. In 2019, his government may be presiding over the most expensive pre-election government advertising blitz in recent history.

Few restrictions on government advertising
All of this is perfectly legal.

The High Court in Combet v Commonwealth made clear that legislation authorising government spending (appropriation statutes) imposes virtually no legal control over spending for government advertising, because of its broad wording.

In the absence of effective statutory regulations, there are government guidelines that prohibit overtly partisan advertising with government funds, such as “negative” ads and advertising that mentions party slogans and names of political parties, candidates, ministers and parliamentarians.

These guidelines nevertheless provide ample room for promotion of government policies under the guise of information campaigns – what Justice Michael McHugh in Combet described as “feel-good” advertisements. They permit advertising campaigns such as the Coalition government’s “Building a better tax system for hardworking Australians” (which essentially promotes the Government’s tax cuts) and “Small business, big future” (which burnishes its “small business” credentials).

The government advertising campaign spruiking its tax reform measures.

Crucially, the guidelines fail to address the proximity of such taxpayer-funded advertising campaigns to federal elections. They fail to recognise what is obvious – the closer we get to the elections, the stronger the governing party’s impulse to seek re-election, the greater the likelihood that “information” campaigns become the vehicle for reinforcing positive images of the incumbent party.

This risk is clearly recognised by the caretaker conventions, which mandate that once the “caretaker” period begins with the dissolution of the House of Representatives:

…campaigns that highlight the role of particular Ministers or address issues that are a matter of contention between the parties are normally discontinued, to avoid the use of Commonwealth resources in a manner to advantage a particular party

The conventions further state:

Agencies should avoid active distribution of material during the caretaker period if it promotes government policies or emphasises the achievements of the government or a minister

The problem with these conventions, however, is that they kick in too late. By the time the House of Representatives is dissolved prior to an election, the major parties’ campaigns have usually been in high gear for months.

A form of institutional corruption

A pseudo-notion of fairness tends to operate in the minds of incumbent political parties when it comes to taxpayer-funded advertising.

When she was prime minister, Gillard defended her use of government advertising by pointing out that the Howard Government had spent more. And now, the Morrison government has sought to deflect criticisms of its current campaign by drawing attention to ALP’s use of government advertising when it was last in power.

Our children are taught to be better than this – two wrongs do not make a right.

Indeed, government advertising for electioneering is a form of corruption. Corruption can be understood as the use of power for improper gain. It includes individual corruption where the improper gain is personal (for instance, bribery) but also what philosopher, Dennis Thompson, has described as institutional corruption, where the use of power results in a political gain.

Government advertising to reinforce positive impressions of the incumbent party is a form of institutional corruption – it is the use of public funds for the illegitimate purpose of electioneering. Its illegitimacy stems from the fact that it undermines the democratic ideal of fair elections by providing the incumbent party with an undue advantage.

It is an instance of what the High Court in McCloy v NSW considered “war-chest” corruption – a form of corruption that arises when “the power of money … pose(s) a threat to the electoral process itself”.

A longer government advertising ban?
I propose a ban on federal government advertising in the period leading up to federal elections.

Such bans are already in place in NSW, which prohibits government advertising during roughly two months before state elections, and the ACT, which bans government advertising 37 days before territory elections. To take into account the longer campaign period at the federal level, a federal ban should operate for at least three months before each federal election.

The absence of fixed terms in the federal parliament is not a barrier to adopting such a ban. With an average of two-and-a-half years between federal elections, a three-month ban of sorts could take effect from two years and three months after the previous election until polling day of the next election.

By dealing with government advertising for electioneering, this ban will improve the integrity of federal elections.The Conversation

Joo-Cheong Tham, Professor, Melbourne Law School, University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Would you like to see a ban on government advertising in the lead-up to an election? Do you regard it as a waste of taxpayers’ money or a service to highlight policies?

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    COMMENTS

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    disillusioned
    11th Apr 2019
    10:36am
    Totally disgusted with this self-serving LNP government, who has been bombarding us with their self-congratulatory advertisements and doco-advertisements for months! Why should they be able to use TAXPAYERS' MONEY that could be better spent on cutting hospital waiting lists or putting air-conditioning in public schools! I haven't voted for them since Abbott, that "suppository of all wisdom", stated categorically - before the election of course - that pensioners' benefits would NOT be cut, then - after the election - proceeded to lower the aged pension cap, excluding people like me who was just under the cap. At least Labor is upfront BEFORE the election about what they plan to do, and that'll do me!!
    arbee
    11th Apr 2019
    4:35pm
    Look back prior to to the Liberals getting into government, labour were no better, possibly worse. Until it can be stopped totally nothing will change, and whatever party is in power, well they sure as hell won't try to stop it while they can use it to help them get re-elected
    Knows-a-lot
    11th Apr 2019
    10:38am
    Trust the scumbag LNP to bludge off the taxpayer in their stinking advertising. No amount of pork-barrelling, spin-doctoring and lies will save them.
    libsareliars
    12th Apr 2019
    1:57pm
    Spot on - get rid of these waste of money ads.
    Anonymous
    15th Apr 2019
    3:24pm
    But Labor is doing the same thing using Victorian taxpayer funds to fund it's federal campaign. Why are you not calling that 'pork barrelling', Know Nothing.

    Lies? Goodness. The LNP can't hold a candle to Shorten and his mob in that department.
    MICK
    11th Apr 2019
    10:43am
    YES YES and YES.
    All we get is propaganda from the Murdoch and Stokes, etc. media and the use of taxpayer money for corrupt purposes.

    I've called for a ban on both electoral donations in all their forms and and the control of the right wing propaganda media which has run its cartel for decades getting the political party of the wealthy, the LNP, into power on the majority of elections as well as destabilising sitting Labor governments with what are exaggerations at best and blatant lies at worst.
    dstark
    11th Apr 2019
    10:47am
    We're all grownups, and we all understand that governments will boast about what they have done, while those in opposition will boast what they intend to do.
    AutumnOz
    11th Apr 2019
    11:04am
    As most of us know who we are going to vote for well before the election the majority of pre-election advertisements by major parties are a waste of money, especially if public money is used by the advertisers, and the ads are an annoyance to potential voters.
    floss
    11th Apr 2019
    11:18am
    The most corrupt party we have ever had in Australia.The old greed is good has to stop leave a little for the next generation.
    jackie
    11th Apr 2019
    11:23am
    I agree ALL political advertisements should be banned.

    It should be up to all Australian voters to take responsibility for who they vote for instead of taking taxpayer-funded advertisements from this Government as guidelines.
    The money spent could be going to where it is needed.

    Clive Palmer should be in jail instead of being allowed to spend money on political advertisements. That money should have gone to the workers he robbed and the ATO.

    They all can promote themselves on social media where it's free.
    Suddha
    11th Apr 2019
    11:45am
    All advertising should be banned from all parties as they never keep to their promises anyway and lots of gullible people believe them. Also why do they need another 30 of days prior to elections to go around spreading more lies to the people. Surely voters should be mature enough to make up their own minds who they vote for without all the lies being spread.
    Old Man
    11th Apr 2019
    11:53am
    My God!, reading the posts so far suggests that this is the first time that this type of advertising has happened. Didn't any of you read the article before your fast fingers hit the keyboard? All governments have done this and the article describes it as "part of a sordid history".

    Now that I've taken a breath, this type of advertising leading into an election should be banned. There should be no "guidelines" but there should be hard and fast rules that can be measured to inflict penalties on those who breach them. We do, however, need to be advised when important legislation that affects the majority is passed and this should be done at the time the legislation is made into law. We don't need reminders of what happened years ago just prior to an election unless the various parties pay for that advertising.
    MICK
    11th Apr 2019
    12:18pm
    Agreed. No matter which side. And not only one side!
    arbee
    11th Apr 2019
    4:40pm
    Fully agree with both of you, but how the hell can you get whichever party is in power and holds a majority to legislate to take away a huge advertising advantage that they would be able to use prior to the next election. The penalties that Old Man suggests should be at least 5 times what the advertising has cost the taxpayers. That should be enough disincentive.
    TOR888
    11th Apr 2019
    12:03pm
    ban this corrupt process immediately. ..this desperate disgusting LNP rabble need to go...
    arbee
    11th Apr 2019
    4:43pm
    Labour have also done it for years prior to Federal and state elections, so by your deductions the labour rabble should go as well. As for Independents, well Palmer for one is paying for his multi million advertising campaign with money he didn't pay his workers in Queensland.
    Anonymous
    15th Apr 2019
    3:26pm
    Labor is doing it now - ripping off Victorians to fund election ads for the federal election. Funny how they say one thing and do another.

    11th Apr 2019
    12:32pm
    Wouldn't it be wonderful if this advertising ban came into being....Nirvana!! Enough of this self indulgent BS at tax payers expense!
    Tom Tank
    11th Apr 2019
    12:32pm
    Political advertising needs to be curtailed as it is being used by all parties in a manner that is, at least, unethical. Any information ads should be placed at the time of enactment of that policy and NO policy should be enacted within 3 months of an election unless it is a genuine emergency approved unanimously by both Houses of Parliament.
    All ads by parties should meet the same standards as that required by commercial advertising and that is to be honest and truthful. The fact that it does not have to meet those standards is a reflection on the political parties tantamount to admitting that they do tell lies in their ads. To think that we are voting for admitting liars.
    Tom Tank
    11th Apr 2019
    12:32pm
    Political advertising needs to be curtailed as it is being used by all parties in a manner that is, at least, unethical. Any information ads should be placed at the time of enactment of that policy and NO policy should be enacted within 3 months of an election unless it is a genuine emergency approved unanimously by both Houses of Parliament.
    All ads by parties should meet the same standards as that required by commercial advertising and that is to be honest and truthful. The fact that it does not have to meet those standards is a reflection on the political parties tantamount to admitting that they do tell lies in their ads. To think that we are voting for admitting liars.
    Pisces
    11th Apr 2019
    1:19pm
    I don't want text messages, propaganda mail, Murdoch rubbish reporting from ANY PARTY. Nor do I want our taxpayer dollars spent on thinly disguised pro government 'achievements'. And why are we seeing Clive Palmer everywhere when has STILL hasn't met his payment obligations the former employees
    Basically I'm over all of them. Please can we have true representation and not more snouts in the trough
    Oldchick
    11th Apr 2019
    1:29pm
    Absolutely YES, it is corrupt and a waste of money that could be far better used on the things people really need, health, education, disability support.....the list is endless. It is self-serving righteous twaddle. Surely the LNP have received enough donations from their ‘top of the town’ buddies to pay out of their own coffers. They look after them well enough.
    libsareliars
    12th Apr 2019
    1:58pm
    Agreed.
    KB
    11th Apr 2019
    1:32pm
    There should be no political advertising at all. People know the issues they want to vote for.Money should be spent on maintaining hospitals and schools
    KB
    11th Apr 2019
    1:32pm
    There should be no political advertising at all. People know the issues they want to vote for.Money should be spent on maintaining hospitals and schools
    Not a Bludger
    11th Apr 2019
    1:48pm
    What a load of codswallop from yet another leftie lawyer academic spruiking on behalf of his socialist mates.
    Professor, what about applying the same rules to assorted outfits such as unions, Getup, Grattan institute, other state labour governments ( eg Andrews political comments re influenza vaccine) etc etc.
    Lookfar
    12th Apr 2019
    2:53pm
    Not a bludger, - not to put too fine a point on it, unions, Grattan institute, GetUp, the greens, wwi, Doctors Without Frontiers, on and on, etc. Don't get Political funding.
    Cancel the codswallop and welcome to the real world.
    Other state labour Govts, ?? just where do they fit into your socialist plan?
    On the Ball
    11th Apr 2019
    2:08pm
    So Lifechoices, you tell us about it, then go and place A FREE ad for the LNP on these pages? Cute. Showing your preferences?
    Old Man and Mick wrote about the outcry "now"? Well anytime is as god as any other.
    If the Government was as good as they tell us, (or promised us) THEY WOULDN'T NEED ADVERTISING.

    11th Apr 2019
    2:23pm
    All election advertising should be banned the money would-be better spent on hospitals presently in emergency at Canberra hospital and it is overflowing long waiting time probably about 6/8 hours
    Troubadour
    11th Apr 2019
    3:41pm
    ALL pre-Election advertising should be banned from ALL aspects of Parliament.
    Tone
    11th Apr 2019
    4:45pm
    I agree with the author of this article; but, in addition, there should be strong control over the veracity or otherwise (& I am afraid the 'otherwise', starting with John Howard and continuing with added vigour by Morrison and his cronies, has been extremely prominent again) of what the parties claim, not only about themselves but of their opponents.

    "The rough and tumble of politics" has become a slanging - and slandering - match. No wonder many, if not the vast majority, of the electorate are sick & tired of it & cynical of politicians in general. The laws regarding politics in Australia need to be strongly amended.
    Alexia
    11th Apr 2019
    5:00pm
    It s a real shame to see those large amounts of money spent in the false advertising that are political campaigns.
    Instead of politicians trying to show us how great they are, they should be spending the money building homes and maintaining the homeless that still sleep in the streets of our cities and feeding the needy and extremely poor that suffer complete derangement and abandon from any human help.
    Our politicians have become a callous and self-centred society, based on money and power and have forgotten any morality or decent forms of behaviour that should be the norm of their "employment".
    I am very disillusioned with our social behaviour in general and the cupidity we experience by voting for them as our political scene in this country has become a corrupt, baseless and unconcerned presence, making thousands of dollars and forgetting their main concerns, which are the people of the country and their well being.
    I think, as the money largely belongs to the taxpayers, us, we should stop any political campaigns and let us judge the politicians by their actions and effectiveness, not by what they tell us.
    Any political propaganda should be illegal and stopped immediately.
    libsareliars
    12th Apr 2019
    1:59pm
    So well said Alexia, hats off to you.
    Dollars over Respect?
    11th Apr 2019
    7:56pm
    Unless we want to end up like the good ol' US of A (where only the super-wealthy or highly influential get to be elected), we need to stop all wealthy, powerful individuals and corporations from making electoral donations and posting political advertisements. Permitted only should be the wide-spread advertising of policies being proffered by each Australian party or electoral candidate - and this should be funded by Australian taxpayers only. Suggest this funding be an allocation and be based upon an 'equal $ allotment' for each individual Australian voter, as listed by name on the electoral rolls for that electorate (no corporations). Equal time only should be allowed on TV for all candidates (and on only those channels authorised by our parliament 'exclusively' - particularly to the exclusion of those controlled by overseas owners/interest groups or overseas governments). No unauthorised media or news channels should be permitted to transmit over our airwaves from the announced date of the election until after election day - to ensure that those who may falsely attempt to represent themselves to be Australian are excluded. The pre-scrutinised profile (by the Electoral Commissioner) of each candidate should be transparent and open for public examination and any potential conflict of interests disclosed by anyone who is seeking election, prior to the commencement of any campaign. Expired politicians/ex-MPs and their staffers should no longer be permitted to act as "lobbyists" (a whole industry group ripe for exploitation/graft/ corruption [working for no one except self-interest] as they do great damage by subjecting our politicians' ethics to intense pressure with promised undiscoverable rewards). Heavy fines should be made enforceable upon any politician publicly stating blatant 'lies' and misrepresentations of facts (not just during a campaign but when in Parliament as well).
    Next, all Politicians' remuneration packages should be amended to exclude their self-installed 'unaffordable' deal of 75% of their salary for the rest of their lives after retirements. What successful business or industry could afford such a deal for its ex-employees?! None! "Ex" means "ex"! This should be replaced with what is affordable and, be the same as the rest of us are expected to be content with - ie an 'employer' (Govt) contribution on their behalf of 9% of their existing salary, which will be available to them upon their retirement. All overseas travel for ex-politicians and their families after retirement is to be paid for out of their own pockets (not ours - the taxpayers, as is the case now). Imagine the windfall of 'billions' of savings suddenly then available for our community of taxpayers for redirection (by ethical leaders) for a better Australia and our future generations.
    DogLover
    11th Apr 2019
    8:07pm
    Why do Liberals stress that they have achieved a budget surplus when it will be another 18 months until this is proven?
    PlanB
    12th Apr 2019
    8:14am
    DogLover ---
    That's because they are lying cheating scum that would sell their Mothers to get their own way and can not be trusted AT ALL
    Anonymous
    15th Apr 2019
    3:28pm
    WRONG, PlanB. They DID achieve a budget surplus, but chose to re-invest it in tax cuts and infrastructure spending to boost the economy further. It's called GOOD MANAGEMENT.
    PlanB
    12th Apr 2019
    8:10am
    I received a letter yesterday from the "Government" telling me I had a rise in pension in March -- FGS we always get that in March AND September -- but this was indicating that THIS mob had done it -- lying lot of scum!

    Oh and also tell us that we are going to get $75 one off to help with power --- AS IF WE DIDN'T ALSO KNOW THAT! --- as it has been all over the Media --- this mob have wasted millions on this crap to make themselves look good --- what a despicable lot they are
    Nerk
    12th Apr 2019
    8:59am
    Get even at the ballot box.
    Lookfar
    12th Apr 2019
    9:01am
    I would like to see all political advertising banned, if we think you did a good job we may re-elecct you, not who gets the most money to brainswash us.
    BTM
    12th Apr 2019
    2:32pm
    I don't believe it, finally we discuss something that we all agree on. Political advertising is a disgraceful waste of OUR taxes and should be banned. Unfortunately I don't think any of the political parties will agree with us. Worth a try though!
    Adrianus
    15th Apr 2019
    9:40am
    I think if a government has a new policy which directly effects a good slice of the population then by all means let us know. We wouldn't need to spend as much if we had an independent, unbiased media outlet.
    Lookfar
    15th Apr 2019
    4:57pm
    Adrianus, the only independant, unbiased media outlet we have is the ABC, (which many claim is biased because it doesn't support their particular point of view) surely you have to be in la la land if you think that a commercial station, - eg Murdoch, could ever be unbiased, nor, even for a microsecond, independant of the money that owns it.
    Adrianus
    16th Apr 2019
    11:48am
    You don't need to look very far to realise that not many people, including me, don't give a hoot what opinions are espoused by the commercial media outlets. Those who continually lambast are the ones wanting control over free speech. Its often hard to see the forest for the trees, or in your case the trees for the forest.
    udo1103
    15th Apr 2019
    1:03pm
    excellent idea, penny wong !!!

    15th Apr 2019
    3:30pm
    How about Penny Wong stop the HYPOCRISY. Labor sees fit to spend taxpayer money - using state tax funds to advertise it's fed election policies. Quick to condemn others for it's own crimes.
    Lookfar
    15th Apr 2019
    4:16pm
    O&W, let's get the main game before pettifogging, make it illegal. - If it is illegal, then you may complain and shout, - not before.
    Anonymous
    16th Apr 2019
    6:08pm
    Lookfar, Labor is condemning the LNP for something that is perfectly legal now, that Labor has done in the past, and that Labor itself is doing now. That's HYPOCRISY. Don't defend it. It's not defensible. It's disgusting.
    Lookfar
    16th Apr 2019
    6:50pm
    O&W, something that is 'perfectly legal now', , ie yet another rip-off of ordinary Australians, can be discussed on this site in this context, r u on the side of the Super Rich, How will that help Australians? - I suspect you r not on the side of Australians, but on the side of the super rich, - can you prove what side you are on Please ?


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