Truth in political advertising laws should be delayed: ACT Electoral Commissioner

The territory's electoral commissioner Damian Cantwell has expressed reservations, saying he feared his impartiality could be breached if he was forced to make judgments on political advertisements.

The commission has also asked for extra funding so an external body could be employed to help with determinations around the new laws.

Truth in political advertising laws are set to come into effect in the ACT from July, after legislation passed the territory's parliament last year.

The laws, pushed by the ACT Greens, would make it illegal to disseminate political material or advertising that is factually incorrect during an election period.

Under the laws, people would be able to refer political material to the ACT Electoral Commission who would then investigate and judge whether advertisements were true or false.

But Mr Cantwell said he would welcome a delay in the electoral act amendments in order for the authority to consider its detail.

Speaking at an ACT Legislative Assembly inquiry into the 2020 ACT election, Mr Cantwell said he approached the upcoming changes with trepidation.

Mr Cantwell said he feared the task would breach his impartiality as people could draw conclusions based on his judgment.

"It will be a difficult task ... it's an area I would rather not be involved in," he said.

"The sense of impartiality and independence here is very important to maintain."

Mr Cantwell was asked whether a delay in the enactment of the law was necessary.

"I think that would be very useful," he said.

"That would give us more time to seek how we would enact that legislation and to inform everybody how it would be enacted.

"I would welcome such a delay because it would be useful for consideration of the detail."

Mr Cantwell told the committee he would put forward the request in writing.

Chair of the Assembly's justice and community safety committee Jeremy Hanson said the committee would look at the delay with urgency.

But Mr Hanson acknowledged a delay might not be feasible.

However, the laws won't be tested until the next territory election, which will be in October 2024.

The Electoral Commission, in its 2021-22 ACT budget submission, has also called for more staff and funding for an external body to help with the proposed changes to the electoral act.

An external body could help to make the judgments.

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Mr Cantwell also told the committee it would be better if members of the government had engaged the commission about proposed electoral act changes earlier.

He said he felt at times he had not been given the opportunity to provide "meaningful advice". Mr Cantwell also said the commission did not have time to seek appropriate advice.

The ACT is only the second Australian jurisdiction to implement the laws, following South Australia. The ACT's laws are modelled on South Australia's.

A submission from the Australian National University's Law Reform and Social Justice Research Hub said the ACT would likely have the same flaws as the South Australia model.

"A 2019 study of South Australia's false political advertising regime found that 'the provisions in South Australia ... score very well in terms of both operability and perceptions'," the submission said.

"This was with the caveat 'that their impact on actual political discourse is limited'.

"As the [ACT] Act's working and operation largely follows South Australia's legislation, the benefits and flaws will likely be similar."

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