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

The Coalition government's use of taxpayer money for political advertising – as much as A$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 A$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 A$20 million on advertising to promote the Gonski school funding changes and another A$70 million on a carbon tax campaign. Going further back, 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 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 A$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 "feelgood" 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).

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.

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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 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.

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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.

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.