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

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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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Written by The Conversation

49 Comments

Total Comments: 49
  1. 0
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    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!!

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      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

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    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.

    • 0
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      Spot on – get rid of these waste of money ads.

    • 0
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      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.

  3. 0
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    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.

  4. 0
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    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.

  5. 0
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    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.

  6. 0
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    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.

  7. 0
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    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.

  8. 0
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    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.

  9. 0
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    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.

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      Agreed. No matter which side. And not only one side!

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      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.

  10. 0
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    ban this corrupt process immediately. ..this desperate disgusting LNP rabble need to go…

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      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.

    • 0
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      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.

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