Government advertising may be legal, but it corrupts our electoral process
The coalition government’s use of taxpayers’ money for political advertising – up to A $ 136 million since January, according to Labor figures – is anything but an aberration in Australia. It’s part of a sordid story where public resources were routinely misused for electoral advantage.
For example, the coalition governments of Tony Abbott and Malcolm Turnbull spent at least A $ 84.5 million on four major advertising campaigns promoting their policies and initiatives with voters. The ALP governments of Kevin Rudd and Julia Gillard spent A $ 20 million on advertising to encourage the Gonski School’s funding changes and a further A $ 70 million on a carbon tax campaign. Going back further, the coalition government under John Howard spent A $ 100 million on its WorkChoices and GST campaigns.
Read more: The Difference Between Government Advertising and Political Advertising
This is also a story where hypocrisy is not difficult to find.
When he was in the opposition, Rudd condemned partisan government advertising as “a cancer of our democracy”. However, his government has exempted its A $ 38 million mining super profit tax advertising campaign from government guidelines issued two years earlier.
In 2010, as an opposition MP, Scott Morrison described such spending as “outrageous”. In 2019, his government could be running the most expensive pre-election government advertising flash in recent history.
Little restrictions on government advertising
All of this is perfectly legal.
The High Court in Combet v Commonwealth made it clear that because of its broad wording, government spending approval legislation (usage statutes) practically provides no legal control over government advertising spending.
In the absence of effective legal regulations, there are government policies that prohibit openly partisan advertising by state funds, such as “negative” advertisements and advertisements that mention party slogans and the names of political parties, candidates, ministers and parliamentarians.
Still, these guidelines leave plenty of room for promoting government policy under the guise of information campaigns – what Judge Michael McHugh in Combet called “feel good advertising.” They allow for promotional campaigns such as “Building a Better Tax System for Hard-Working Australians” by the coalition government (which essentially promotes government tax cuts) and “Small business, big future” (which revamps its references for “small businesses”).
It is crucial that the guidelines do not take into account the proximity of such taxpayer-financed advertising campaigns to federal elections. They fail to recognize the obvious – the closer we get to the elections, the stronger the impulse from the ruling party to re-elect itself, the greater the likelihood that “information” campaigns will become a vehicle to strengthen the ruling party’s positive image.
This risk is clearly recognized by the Caretaker Conventions, which stipulate that as soon as the “Caretaker” period begins with the dissolution of the House of Representatives:
… Campaigns highlighting the role of certain ministers or addressing issues that are controversial between the parties are usually discontinued in order to avoid the use of Commonwealth resources for the benefit of a particular party
The conventions also state:
Agencies should avoid actively distributing material during the transition period when promoting government policies or highlighting the achievements of the government or a minister
The problem with these conventions, however, is that they come in too late. Until the House of Representatives is dissolved before an election, the major parties’ campaigns have usually been in full swing for months.
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A form of institutional corruption
In the minds of established political parties, tax-financed advertising tends to have a pseudo-idea of fairness.
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 administration has tried to deflect criticism of its current campaign by drawing attention to ALP’s use of government advertising during its final term in office.
Our children are taught to be better – two mistakes don’t make right.
Indeed, government promotion of election advertising is a form of corruption. Corruption can be understood as an abuse of power. It encompasses individual corruption where the unlawful gain is personal (e.g. bribery), but also what the philosopher Dennis Thompson described as institutional corruption where the use of power leads to political gain.
Government advertising to reinforce the positive impression of the incumbent party is a form of institutional corruption – it is the use of public money for the unlawful purpose of campaigning. It is illegitimate because it undermines the democratic ideal of fair elections by giving the incumbent party an unjustified advantage.
Read more: Election declaration: Which rules apply to political advertising?
It is an example of what the High Court in the McCloy v NSW case called “war chest” corruption – a form of corruption that arises when “the power of money … threatens the electoral process itself.”
A longer state advertising ban?
I propose a ban on advertising by the federal government in the run-up to the federal elections.
Such bans already exist in NSW, which bans government advertising for about two months before state elections, and ACT, which bans government advertising 37 days before area elections. In order to take into account the longer election campaign time at the federal level, a federal ban should apply for at least three months before each federal election.
The lack of fixed terms of office in the Bundestag does not preclude such a ban. With an average of two and a half years between the Bundestag elections, a kind of three-month ban could come into force from two years and three months after the last election until the election day of the next election.
By dealing with government advertising for election advertising, this ban will improve the integrity of federal elections.