Between fraudsters bombarding our phones with bogus messages about delivery items, and former Liberal MP turned United Australia Party leader Craig Kelly providing unsolicited texts on behalf of the United Australian Party, many Australians have had enough of receiving a relentless barrage of unwanted spam.

But while the phishing scam artists are clearly breaking the law, Craig Kelly isn’t. In fact, it’s actually quite remarkable how many laws Mr Kelly, and other politicians, can legitimately bypass to send us unsolicited texts.

Federal Senator Stirling Griff has announced that next month he will be introducing laws to stop politicians from spamming phones with unsolicited messages. Past attempts to outlaw this conduct have not been successful, but the public outrage, reflected in the thousands of formal complaints and tens of thousands of signatures in petitions received after Mr Kelly’s latest round of texts, suggests that the current framework is just not cutting it with the Australian public.

So why are politicians allowed to spam us when others can’t? And should something be done to address this issue?

Privacy Laws

The Privacy Act was designed to make organisations, including certain Government agencies, more responsible and accountable for the use of people’s personal information.  It imposes obligations on how organisations caught by the Act are required to handle personal information, gives individuals some control over the disclosure of their personal information, and requires organisations to notify people if there has been a privacy breach that could cause them harm.

Political parties are exempt from these laws, essentially meaning they can obtain your personal information and pepper you with unsolicited messages with impunity.

But why are politicians free to do this? It may in part be because in Australia there is an implied constitutional right to freedom of political communication, and this can lead to a concern that restricting the ability of political parties to communicate with citizens may threaten the freedom of political communication, which is essential to democracy. Without going into the merits or otherwise of this argument, there is clearly a tension here between freedom of political communication and the principles of accountability and no one being above the law.

Back in 2008, the Australian Law Reform Commission recommended that privacy exemptions for politicians be scrapped.

“In the interests of promoting public confidence in the political process, those who exercise or seek power in government should adhere to the principles and practices that are required of the wider community. Unless there is a sound policy reason to the contrary, political parties and agencies and organisations engaging in political acts and practices should be required to handle personal information in accordance with the requirements of the Privacy Act… the ALRC is not convinced, however, that all (or even the majority) of information-handling activities undertaken by registered political parties and those engaged in political acts and practices warrant legislative immunity.”

Where are politicians getting our data from?

Political parties can request access to the Electoral Commission’s database of voters’ contact details. They can also purchase personal information from marketing and data harvesting companies. If you have provided any of your personal details online, you can be confident that a political party will be able to access this information.

But isn’t it illegal to spam people?

Yes, the Spam Act prohibits the sending of electronic messages (such as text messages and emails) that offer goods and services, unless you have previously consented to receiving the messages.

But politicians are exempt from this legislation too. As long as their message is not commercial in nature and they identify themselves, they are free to message you. And because the “do not call register” only covers communication of a commercial nature, being on the register won’t stop the political messages coming.

Even if we accept that politicians can legitimately access our contact details and send us party-political messaging, many consider it problematic that we don’t have the right to opt out of that communication. After all, if someone has the right to spout their political views to you, shouldn’t you also have the right to withdraw from a political conversation you don’t wish to be a part of?

But what if the text messages are deliberately misleading?

There are laws to prevent misinformation in advertising, but guess what? Politicians are exempt from truth in advertising laws too.

There are legitimate concerns about how truth in advertising laws would be enforced and prosecuted if they were to apply to politicians, rather than commercial endeavours.

South Australia is currently the only State to have truth in political advertising laws, although the ACT recently passed similar laws in August. The constitutional validity of these laws has not been tested, but there clearly is a tension between these laws and concepts surrounding freedom of political expression.

Of course, we don’t want our elected representatives to be censored, but neither should we want our politicians to be free to spread misinformation. Both censorship and misinformation undermine democracy and reduce trust in public institutions.

One of the key questions is: Would laws that prohibit politicians from lying in advertising campaigns actually detract from political discourse? It does not seem controversial to say that if “fake news” was peddled by politicians it would diminish, rather than enrich, political debate.

How should the truth or otherwise of political advertising be determined, and who should evaluate it?

In SA, the Electoral Commissioner is responsible for determining whether a political advertisement is misleading and can ask the advertiser to withdraw the advertisement or publish a retraction.

This has been somewhat contentious, with former State Electoral Commissioner Kay Mousley saying she did not think it was appropriate for her to have to make judgment calls on advertising during an election campaign, particularly when so many of the complaints she had to investigate were on moral, rather than factual grounds.

Before the ACT truth in advertising laws were introduced this year, the Territory’s electoral commissioner also expressed concerns that his new role as arbiter of truth in advertising would compromise his impartiality and independence.

It should be self-evident that it is not desirable for politicians to be able to lie without consequence, but how, and if, this should be regulated is not so straightforward. Nevertheless, the storming of the Capitol in the US on 6 January demonstrates the real-world, and tragic consequences of politicians propagating misinformation, and we need to seriously think about how regulation can be incorporated into a multi-faceted response to prevent lies, manipulation and deception by political parties.

It is important that political discourse in Australia is robust, inclusive, and generally unfettered, but giving politicians wholesale immunity from our privacy, spam and truth in advertising laws can create an environment where it is far too easy for politicians to spread misinformation with little to no accountability. Even if we accept that politicians should be afforded some more wriggle room with regards to the claims they are able to make, there is still plenty of scope to consider reforms that give the public the right to opt out of direct communication by politicians, and which provide standards of credibility to which political advertising should adhere to, and a method by which to correct clear misinformation.