Inaccurate and misleading electoral advertising, also known as truth in political advertising, is where:

• a person disseminates, or authorises for dissemination, an advertisement containing electoral matter; and

the advertisement contains a statement purporting to be a statement of fact that is inaccurate and misleading to a material extent.

When the Electoral Commissioner (the Commissioner) receives a complaint alleging an advertisement is inaccurate and misleading it will commence a formal assessment process against specific criteria.

To substantiate a complaint, the allegation must meet the following criteria:

• The advertisement must contain electoral matter (which is a defined term in the Electoral Act)
• The advertisement must contain a statement purporting to be a fact. That is, the Commissioner cannot apply misleading electoral advertising law against statements of opinion; and
• The relevant statement must be inaccurate and misleading to a material extent.

To commence a formal assessment process, the Commissioner will require a complaint to identify the element of the advertisement that is being disputed as inaccurate and misleading and will require detailed evidence in support of this claim. The complaint should provide sufficient information on which the Commissioner may form a view. The Commissioner may then undertake investigations in order to corroborate the supporting evidence supplied. For example, it may be necessary for the Commissioner to seek further information from either or both of the complainant and the alleged offender.

It may also be necessary for the Commissioner to seek external advice to enable the Commissioner to form a view on whether or not an advertisement is inaccurate and misleading.

If, after completing the formal assessment, the Commissioner does not find that the electoral advertising contains a statement that is inaccurate and misleading to a material extent, the Commissioner will write to both the complainant and the author of the electoral advertising, advising of the outcome. No further action will be taken in relation to the complaint.

But if the Commissioner does identify a breach of the law, remedial action by the person responsible for the advertising, will be required (See below).

It must be appreciated that in order to ensure due process, the Commissioner’s assessment may take some time, including during and through an election period.

Although the Commissioner will endeavour to resolve complaints as quickly as possible, there should be no expectation that all complaints will be resolved before the end of polling day.

The Commissioner may formally write to the person asking them to do one or more of the following :

• not disseminate the advertisement again; and/or
• publish a retraction in stated terms and in a stated way.

As part of a request for a retraction, the Commissioner may explicitly state the manner and form that the retraction should take.  For example, if a person publishes an inaccurate and misleading advertisement in a newspaper, the Commissioner may request a retraction be published in the same newspaper.  Additionally, the Commissioner may dictate the wording to be included in the retraction.

It is also within the Commissioner’s discretion to apply directly to the Supreme Court for an order obliging the person to cease disseminating the advertisement further and/or publish a retraction.

The Commissioner also has the discretion to refer the matter to the Director of Public Prosecutions for possible criminal prosecution.

The above enforcement activities may be utilised by the Commissioner in combination or in isolation.

The maximum penalty is 50 penalty units.  As at 1 July 2021 each penalty unit is:

• $160 for an individual; and
• $810 for a corporation.

Penalties can only be applied by the Supreme Court.

It is a defence for an offence if the defendant can prove they:

• took no part in deciding the content; and
• could not reasonably have known that the statement was inaccurate and misleading.