This article is more than 1 year old

This article is more than 1 year old

The electoral watchdog has found 87 cases of unlawful political advertising after being inundated with almost 500 complaints during the federal election.

The campaign was littered with examples of unsourced or anonymous political advertising that breached electoral laws.

The problem was particularly acute on social media, where fringe, sometimes anonymous groups paid to push political messaging to users.

In all, the Australian Electoral Commission has revealed it received almost 500 complaints about political advertising during the campaign, about 90 of which related to social media content.

It substantiated 87 of the complaints. The AEC did not take punitive action in the 87 cases, but said it was able to more effectively and quickly resolve the breaches by issuing direct warnings.

It also did not take action on several complaints where voters were misled or deceived in an attempt to influence their vote. The AEC usually was unable to act because the cases did not fall foul of electoral law, no matter how egregious they appeared.

Examples include:

Deployment of fake AEC-styled signage in Mandarin telling voters in Chisholm to give their first preference to the Liberal party. The AEC said it translated the signs and found them to contain the proper authorisation, so found there was no breach of the electoral act and took no action.

An unauthorised mass robocall by prominent businessman Mark Bouris telling voters not to vote Labor or their house values would fall. The AEC said this was a technical breach of the Electoral Act and directly warned Bouris, who undertook to stop the calls until they were properly authorised.

The handing-out of fake how-to-vote cards that told Greens voters to direct their preferences to Peter Dutton in Dickson. The AEC said this was not an issue because the “flyer does not purport to be an official [how-to-vote] card” and contained an authorisation.

The unauthorised fake eviction notices put up by unions in Victoria on office windows of Liberal MPs. A warning was given and the unions promised to authorise the material.

The failure to authorise Liberal party ads appearing on major news websites, including the Sydney Morning Herald. A warning was given, and ads were authorised and removed.

A string of false claims made in election advertising, including that Labor planned to introduce a death tax and car tax. Section 329 of the Electoral Act prohibits “misleading or deceptive” claims about the process of how to vote, but does not extend to general truth in political advertising.

The AEC has the power to take individuals to court to seek an injunction for breaches of electoral laws. It has only done so once before.

For the first time this election, the AEC was also able to seek civil penalties for breaches of the electoral law.

The watchdog said it was “fully prepared, willing and able” to use the full powers available to it. But a spokesman said it was usually much faster and more effective to provide warnings to the offending party.

“In almost all cases, a faster way to obtain compliance on these matters is by warning the people or organisations responsible for the electoral communications without having to resort to the courts,” a spokesman said.

Experts and former insiders have warned the election watchdog is hamstrung by a lack of power, past court decisions, resourcing and the increasingly complex challenges posed by social media.

A former AEC official, Michael Maley, said the AEC did not hold much power to go after misleading electoral conduct because it “doesn’t cover material that may be misleading about which party or candidate to support”.

“All it really covers is where a voter is misled about the process,” Maley told Guardian Australia. “The AEC doesn’t have a general power to go off and enforce what it believes ought to be required for a free and fair election.

“There are specific offences in the Electoral Act – if conduct doesn’t breach those provisions, there’s nothing they can do. If it’s legal, it’s legal.”

A spokesman said the AEC could only follow “highly prescriptive” laws that “set clear precedents for interpretations of certain sections of electoral law”.

The situation is even more challenging on social media.

Maley said that social media “makes it 10 times harder to enforce [electoral laws] in any practical way … It’s very, very difficult to suppress these Facebook accounts, which circulate some shit and then go away again. You can’t do much short of shutting the internet down at election time.”

The AEC also lacks resources and the remit to check candidates’ eligibility, despite the new requirements designed to prevent another dual citizenship scandal. Guardian Australia revealed that United Australia party candidates had failed to properly complete section 44 disclosures on dual citizenship, but the AEC was unable to take action because it had no power to do so.

“The whole thing’s a mess,” Maley said.

Prof Graeme Orr, a political law expert at the University of Queensland, said election campaigns now risked being “awash with material that is not authorised or misleads electors in how to cast vote”.

Orr believes it is critical that action be taken on the Chisholm case, where a third party imitated AEC signage to convince voters to vote Liberal.

“The AEC must protect its own integrity against material, like that in Chisholm, that imitates its style and colours,” he said. “The AEC and rival parties could have sought court injunctions to restrain any unlawful material: the AEC retains power to investigate further and refer any breaches to police.”