Former Liberal backbencher Craig Kelly recently spammed large numbers of Australian voters by sending bulk text messages to their mobile phones.
The spam texts, one of which promoted Kelly’s anti-vax views, struck many recipients as an invasion of privacy and triggered thousands of complaints to the Australian Communications and Media Authority (ACMA).
Kelly said the messages were “100 per cent legal”.
He is correct.
Indeed, Australia’s anti-spam law applies only to “commercial” messaging and specifically exempts political communication (Section 44), including text messages like Kelly’s.
Some have proposed changes that would allow people to unsubscribe from unwanted political text messages.
But it is likely in future we will see more, not less, unsolicited text messaging – and not just in politics.
How did they get my number?
Kelly, who joined Clive Palmer’s United Australia Party earlier this year, has said he used software to generate random mobile numbers.
That’s plausible: There are plenty of sites that will perform this relatively simple task.
But it is not cheap to upload the random numbers onto a server that can send text messages.
It’s also not efficient, as many of the randomly generated numbers will not be real numbers.
Then again, Mr Palmer’s track record of lavish electoral expenditure in the 2019 federal election suggests he can afford such an approach.
Mr Kelly did not reveal the actual number of text messages he sent, though it is likely to be in the thousands.
There are plenty of other ways in which your mobile phone number might end up being fodder for marketing campaigns.
Think how many times you provide your private contact details for retail and financial transactions, social media accounts, ID checks and entertainment subscriptions.
The reality is your private details have a commercial value.
These can include your mobile phone number.
How is that legal?
By and large Australian phone numbers, including landline and mobile services, are well secured.
Access to the Integrated Public Number Database (IPND), managed by Telstra, is overseen by ACMA.
Phone subscribers can choose to have a “silent” (unlisted) number, and can opt out of telemarketing calls via the do not call register.
But even here, there are political exemptions.
Researchers can be given permission to call numbers from the IPND to conduct interview-based research, including market research into “federal state and local government electoral matters”.
ACMA can punish companies that misuse numbers for “spam” marketing purposes.
But Telstra and ACMA are clear they can’t block political parties, along with charities and some government agencies, from sending unsolicited marketing numbers.
What about the electoral roll?
When you enrol to vote, you provide your full name, date of birth, current residential address, phone number or numbers, email address and citizenship.
You also need proof of identity such as a driver’s licence or passport.
These details are well protected and support Australia’s system of compulsory voting.
Again, however, under the Electoral Act, your name and address can be provided to members of Parliament, registered political parties and candidates for the House of Representatives.
For both major parties, ALP and Liberal, that information forms the basis of the large databases they have assembled for targeted campaigning: Making phone calls, knocking on doors, sending automated “robocalls” and texting.
Why are political parties exempt?
When Mr Kelly joined Mr Palmer’s party, he not only accessed Mr Palmer’s campaign war chest.
Registered political parties enjoy special treatment under Australian electoral law, including entitlement to public funding for their campaign costs, and exemptions from privacy rules governing access to personal data.
The rationale for the exemption is that no regulator should impede the free flow of information about electoral choice.
The argument is that claims and counterclaims by different politicians and parties – even false claims about vaccinations – constitute the lifeblood of democracy and should be resolved, ultimately, at the ballot box, not in the courts.
All this is underpinned by the High Court’s finding that the constitution “implies” the freedom of political communications to the extent necessary to allow the operation of democratic government.
For all these reasons, political advertising in Australia is largely unregulated.
It doesn’t have to be truthful or factual.
Courts and regulators would be reluctant in the midst of an election campaign to adjudicate on truth; voters are expected to have the wisdom to work it all out at the ballot box.
Of course, political parties are not just the beneficiaries of this lack of regulation; they are in a real sense its authors.
The capacity of rival parties to collaborate in shaping laws to suit themselves forms a key pillar of the cartel theory of parties.
The main – virtually the sole – regulatory requirement for political ads is they are “authorised” – that is, they include the name of a person responsible for them. Authorisation provides accountability for political statements.
Back in 2016, however, SMS messages were not covered by this requirement.
At the end of the 2016 federal election campaign, the Queensland Labor Party sent a bulk text message promoting its scare campaign about Liberal plans to “privatise Medicare”.
The text messages were not authorised and, moreover, purported to come from “Medicare”.
The law was tightened in 2019.
Mr Kelly’s text messages were authorised, by himself.
Is this likely to happen more often in the future?
During the Black Summer bushfires, blazes ripped through Cobargo on the far south coast of New South Wales.
As part of the nation’s emergency warning system, thousands of landlines and mobile phones – my own included – were alerted with urgent warnings to evacuate.
Alerts were sent to mobiles according to their registered service address and also to the “last known location of the handset at the time of the emergency”.
It is a far cry from Mr Kelly, and no one envisages political parties being able to target voters by this kind of electronic geo-location.
But it suggests the ability to send brief, urgent and unsolicited text messages, to large numbers of people, is too valuable to ignore.