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The electoral law system is ‘incredibly fragile’ in age of social media

New social media platforms can result in “unregulated communication”, something this lawyer said can be dangerous in terms of misinformation within Australia’s electoral law ecosystem.

user iconLauren Croft 24 October 2023 Big Law
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Kiera Peacock is a partner at Marque Lawyers. Speaking on a recent episode of The Lawyers Weekly Show, she revealed some of the current issues around misinformation in the electoral law system ahead of the recent Voice to Parliament referendum, which returned a “no” vote.

Ms Peacock has been working in the electoral law space for the last six or seven years – and said that the laws that applied to this referendum are the same that would apply to a federal election.

“They’re different to what we saw during the plebiscite on marriage equality, and they are different to what occurred in the 1999 referendum as well. So, for people who are involved in election campaigns, they can pretty much draw parallels between the regulation they would have experienced there and what applies to a referendum.


“The two key pillars of our electoral law system are transparency around who is producing content and that is applied in what we’re used to seeing at the end of a TV commercial where it’s the rushed authorised by blah, blah, blah. And the idea of that is that as people in the electorate, we’re entitled to know who is producing our political material and so that it can be interrogated if need be. So that applies in a referendum as well. The second aspect is trying to regulate donations and finance of referendums at a federal level,” she explained.

“And for a referendum, that applies to recording people who are giving you donations and the amount of the donation, and then disclosing that after the referendum so that there’s some transparency over who is funding these electoral campaigns and how much is being spent on them. There are talks about, at a federal level, making those obligations even more transparent by reducing the threshold at which people need to disclose and potentially bring in real-time disclosure. Meaning, we would have known at the time of the referendum how much people were giving and to whom, rather than waiting till after the fact or relying on public announcements.”

The Australian Electoral Commission’s (AEC) independence, as well as having a regulator, have both meant that Australia’s political system has been cited as strong on a global stage.

“Having well-resourced, well-funded electoral commissions [that] are able to have a strong impartial presence at our political campaigns is a really integral thing. And we’ve seen examples around the world where governments might start to defund their regulatory body when they want to start bringing in attacks on the electoral system,” Ms Peacock said.

“Australia has a mix of various donation and political finance structures with no uniform approach across the country, nor is there a uniform approach across the world because each jurisdiction has different concerns about what it seeks to use those laws to attack. There is a big conversation going on at the moment about what our federal laws should look like.”

But this conversation, Ms Peacock emphasised, has revealed a number of holes in the system.

“I think the key or the defining feature of this referendum, from my perspective, has been the demonstration that the current tools we have to regulate elections, not keeping pace with the platforms on which people communicate and the types of messages that are being sent out there, just for the reason why. When I talk about our electoral laws, I don’t mention that there’s anything to stop someone from producing misleading or deceptive conduct because there is no such law,” she said.

“At a general level, there are some nuanced ones [that] apply to very, very particular forms of action, but there’s nothing on a broad basis [that] stops people [from] telling outright lies or spreading deliberate disinformation. So that, I think, in this referendum has really come to the fore in the way that it hasn’t in previous federal elections or state elections.”

This isn’t an issue particularly “peculiar to our elections”, but it is something that, more broadly, regulators are grappling with across the “legal and social landscape”, according to Ms Peacock.

“When we look at our electoral laws, they were drafted at a time when typically, you might have some TV ads being produced, newspaper ads, some signs put up. And it was much easier to regulate or to understand who was producing content and for people to critique it, because everyone was working typically on a similar narrative in that they knew what was out there and it could be accessed by everyone who wanted to commentate on it.

“There also was historically, I think, a respect for institutions and a trust which was put in the accuracy of what was being said by people who were participating in political discourse. And even at times when you might have thought there was some spin going on or political spin from a politician, it was typically underpinned by at least some level of accurate fact. And we’ve seen that we’ve lost a lot of the trust.”

This has resulted in a number of “fractures” emerging in the current political ecosystem.

“One is that the ways we communicate are fundamentally different. It’s not a newspaper or a TV commercial. It’s many, many different forms of communication and really targeted communication. And whereas before, there was this general understanding of this was the campaign and this was the platform, that’s now been fragmented into if I’m on TikTok, I might be seeing a very curated form of content being produced by the algorithm targeted at me, and I don’t know what someone else is seeing,” Ms Peacock added.

“So, it’s difficult for there to be a unified conversation about what the issues are in any political debate, and that’s certainly something [that] is affecting many aspects of society. It also means that it’s really hard. Our conventional forms of regulating what’s being discussed, such as just knowing who produced it, [are] almost meaningless because there are so many people playing outside the rules, and the rules themselves aren’t adequate, that we don’t know who is producing a lot of content that’s out there.

“We’re having to navigate a platform-by-platform approach to regulation of what’s on there and also a kind of fragmented regulatory system in terms of understanding who to speak to about issues [that] are emerging in forms of hate speech or threats of violence. So, it’s a very murky and difficult world to navigate.”

The rise of social media and “unregulated” communication platforms can also be extremely dangerous in terms of misinformation, Ms Peacock added.

“Most people don’t realise that it’s completely legal to lie in political advertising. And so, if you don’t understand that, then you assume that what you’re seeing must be bounded by some form of truth or basis. And once you take away that veneer, you realise that we are operating in an incredibly fragile environment. And so, we all need to be asking questions of who is producing content, why are they producing it and what are the facts which might support it or oppose it,” she added.

“And I think that kind of critical thinking is something we need to do a lot of as we enter this new world of unregulated communication, but particularly in the context of political communications and electoral laws, it’s something to really focus on.”

The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with Kiera Peacock, click below: