Regulating truth and lies in political advertising: Implied freedom considerations

Date & time
1–2pm Wednesday 3 March 2021

Phillipa Weeks Staff Library, ANU College of Law, Building 7, Level 4, Room 7.4.1

Kieran Pender
ANU Law Marketing
ANU College of Law Research Seminar

Part of the ANU College of Law Research Seminar Series 2021 series

Regulating Truth and Lies in Political Advertising: Implied Freedom Considerations

Contemporary politics is increasingly described as ‘post-truth’. In Australia and elsewhere, misleading or false statements are being deployed in electoral campaigning, with troubling democratic consequences. Presently, two Australian jurisdictions have laws that require truth in political advertising; there have been proposals for such regulation in several more, including at a federal level.

This seminar paper considers whether these laws are consistent with the implied freedom of political communication in the Australian Constitution. It suggests that the existing provisions, in South Australia and the Australian Capital Territory, would likely satisfy the proportionality test currently favoured by the High Court.

However, the seminar paper identifies a number of implied freedom concerns which could prevent more onerous limitations on misleading political campaigning. Legislatures therefore find themselves between a rock and a hard place: minimalistic regulation may be insufficient to curtail the rise of electoral misinformation, while more robust truth in political advertising laws are potentially unconstitutional.


  • Kieran Pender »

    Senior Lawyer, Human Rights Law Centre; Visiting Fellow, ANU College of Law, The Australian National University

    Kieran Pender is a senior lawyer at the Human Rights Law Centre, where he leads its work on whistleblower protection. Kieran is also a visiting fellow at the ANU College of Law, a consultant with Bradley Allen Love Lawyers and a writer for The Guardian and The Saturday Paper. Prior to joining the Human Rights Law Centre, Kieran was a senior legal advisor with the International Bar Association’s Legal Policy & Research Unit in London. Kieran publishes frequently on public law and employment law issues. His research on the intersection between employment and free speech was awarded the Australian Association of Constitutional Law's 2019 Saunders Prize for Excellence in Scholarship.

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