Commencing 15 March 2018
Electoral Backgrounders are published by the Australian Electoral Commission (AEC) to provide a basic introduction to electoral law, policy and procedures for the information and guidance of all interested parties.
The general guidance that is always provided by the AEC is – ‘when in doubt – authorise it’. The issue then becomes to determine exactly what authorisation particulars are legally required to be included in any electoral communication. The required particulars are contained in the Commonwealth Electoral Act 1918 (the Electoral Act), the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2018 (the Determination), the Australian Broadcasting Corporation Act 1983, the Broadcasting Services Act 1992, and the Special Broadcasting Service Act 1991.
While this publication focusses primarily on electoral communications, it should be noted that a similar authorisation regime applies for communications about referendum matters, with some modifications to reflect the different nature of such issue-based electoral events, based on the entities involved and the types of financial disclosure for referendums. Like with elections, all paid advertising in referendums is covered by the new authorisation regime, as are registered political parties and their associated entities. Unlike elections, recent candidates, Senate groups and donors are not specifically covered. However, persons and entities spending money on campaigning or communicating relating to the respective referendum matter in excess of the indexed financial disclosure threshold will be covered by the authorisation requirements. The relevant period for expenditure will be the 12months prior to the issue of the writ for a referendum, rather than a financial year.
This Electoral Backgrounder provides a basic introduction to the regulation of electoral communications that relate to a federal election. Its contents are a guide only. Individual matters are assessed on a case-by-case basis and, ultimately, it is for the courts to decide upon the interpretation of the law in any particular case. Accordingly, if you are in doubt about the interpretation of the law in particular circumstances, you should seek your own independent legal advice.
A. The objects of the authorisation requirements are to promote free and informed voting at elections by enhancing:
A. From 15 March 2018, the authorisation requirement in Part XXA of the Electoral Act applies to a wide range of communications containing ‘electoral matter’ including all publicly communicated material. This includes printed material, social media, voice calls (including robocalls) and text messaging (for example, bulk text messaging). Political communications that are broadcast by television and radio broadcasters remain covered by the relevant legislation which has been amended to align with the new requirements contained in the Electoral Act. It covers:
A. A ‘disclosure entity’ is defined in section 321B of the Electoral Act and includes a registered political party, an associated entity, current members of Parliament, candidates and a number of others who have to lodge returns of donations and expenditure under Part XX of the Electoral Act. A ‘disclosure entity’ has to include more identification details in electoral communications as is shown in Item 1 of the table in subsection 321D(5) of the Electoral Act.
A. An ‘electoral matter’ is defined in subsections 4(1) and (9) of the Electoral Act to be communications of the following kinds:
For example, matter that contains a comment on the current or previous Government or Opposition in relation to an issue in an election is ‘electoral matter’.
A. The following types of communication about a federal election do not require an authorisation:
A. All of the requirements contained in Schedule 1 of the Electoral and Other Legislation Amending Act 2017 commence on 15 March 2018. This includes the new authorisation requirements that apply to the communication of ‘electoral matter’ and ‘political matter’. These requirements apply at all times during the year. This is not limited to only those communications made during the election period (i.e. the period between the issue of the writs and polling day).
A. The Electoral Commissioner is responsible for administering the authorisation requirements and the civil penalties contained in the Electoral Act. Where the Electoral Commissioner receives a complaint, the complaint will be investigated and, where appropriate, an outcome negotiated in a similar way to the handling of complaints under the previous regime. The Commissioner’s usual approach is to first issue a warning of a possible breach and seek the voluntary removal of content that is published in breach of the requirements. Under the new regime, the matter can then be escalated to seeking an enforceable undertaking. The matter is only then referred to the Court for the imposition of a civil penalty, if this preliminary action fails to address the breach. At that point the Electoral Commissioner would also seek an injunction.
A. The penalty for a breach by an individual of the authorisation requirements is a penalty of up to 120 penalty units (the existing value of a penalty unit is $210 as at 15 March 2018) and results in a penalty of up to $25,200. For a body corporate, the penalty is five times the penalty for an individual. As such, the penalty for a breach by a body corporate would be up to 600 penalty units (i.e. up to $126,000).
A. The table in subsection 321D(5) of the Electoral Act (see Items 1,3,5,7) sets out what particulars are required if the communication of the ‘electoral matter’ is by a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or How-to-Vote card. The authorisation particulars on these written communications must include:
A. A how-to-vote card is a form of written communications that requires the inclusion of authorisation particulars. Under the repealed section 328B of the Electoral Act the authorisation particulars were required to appear on both printed faces of the how-to-vote card. As at 15 March 2018, this is no longer the case and the authorisation particulars are only required to be at the end (or bottom) of the printed material in a font size that can be read by a person with 20/20 vision without the use of any visual aid.
A. Yes – if the text message contains ‘electoral matter’ then the text message is required to include authorisation particulars (Items 2, 4, 6, and 8 of the table in subsection 321D(5) of the Electoral Act).
A. The authorisation particulars on a text message must include:
A. A text message is defined under section 4 of the Determination to mean an electronic message (within the meaning of section 5 of the Spam Act 2003) that is sent to an electronic address in connection with a telephone account. If the communication is a text message, the particulars must be notified:
A. Social media content (e.g. Facebook, Twitter, Instagram, etc) will be required to have an authorisation if the communication includes ‘electoral matter’ in a paid for advertisement (including communications which all or part of the distribution or production has been paid for) approved by a person or is communicated by, or on behalf of, a person. The table in subsection 321D(5) of the Electoral Act (Items 2, 4, 6 and 8) set out the authorisation particulars which must include:
A. As set out in the Determination, if the communication is communicated by social media, the particulars must be notified:
A. Provided the authorisation particulars can be located on the Twitter or Facebook account, then this will be sufficient. However, an issue could arise where a person re-tweets another person’s message and the details are not included.
A. No. Social media content will not require an authorisation if it is communicated for personal purposes, for instance only to personal friends.
A. If you have not reposted the content for personal purposes, you must authorise your post, including the reposted communication and your commentary. The original post is authorised by the original communicator. The provider of the service used to post both messages does not authorise either the original post or your post, as the service provider did not make the decision to communicate the content.
A. The authorisation is required to be on the Tweet or Facebook post itself. The particulars must be at the end of the communication or, if the particulars are too long to be included, in a website that can be accessed by a URL included in the communication or by a photo of the particulars included in the communication.
A. Telephony is defined under section 4 of the Determination to include communication by VoIP or Skype and any communications generated by computerised auto-diallers. If the communication is telephony, the particulars must be notified at the beginning of the communication.
A. The particulars are the same as for social media and must include:
A. The authorising particulars must be disclosed at the beginning of the call.
A. Communications for personal purposes will not require an authorisation.
A. The disclosure entity has authorised the communication as they have approved the content (the script) of what was communicated by the call centre. The call centre and the provider of the telephone service used by the call centre do not authorise the matter communicated as the call centre and the telephone service provider did not make the decision to communicate the content.
A. Emails are a form of electronic communication and the relevant disclosure details are similar to those that apply to communications by social media.
A. Yes. As long as the notifying particulars are contained in the email, it is sufficient to contain the authorisation in the signature block.
A. Emails have room to include the full authorisation particulars therefore a link to a website is not sufficient.
A. The authorisation particulars for a website that contains electoral communications are contained in the table in subsection 321D(5) of the Electoral Act (Items 2, 4, 6 and 8) and which must include:
A. It is not prescribed where the authorisation should appear on a website or webpage. However, generally it would appear somewhere on each page that contains ‘electoral matter’ where it can be readily located by readers. There is a distinction between websites that are published directly by a ‘disclosure entity’ and other websites that only contain ‘electoral matter’ on some of their webpages. The AEC suggests that the landing page for a website should have the authorisation particulars where it is published by or on behalf of a ‘disclosure entity’. For more general websites, it is only necessary that the webpages that actually contain ‘electoral matter’ have the required authorisation particulars.
A. Whether you had the opportunity to read over the speech and request edits before approving it, you as the speaker have ‘authorised’ the speech, as you have ultimate control over what you say or will not say and by reading the speech, you are approving it in the form you deliver. There is an exemption contained in subsection 321D(4) of the Electoral Act for speeches that are communicated live at a meeting but not for any subsequent communication of that speech.
A. Yes. The authorisation particulars are similar to those that apply to social media. If the communication is search advertising, the particulars must be notified:
A. Yes. The authorisation details are the same as for social media. The term ‘streamed music’ is defined under section 4 of the Determination to include music streamed by Spotify, Google Play Music or Apple Music. If the communication is streamed music, the particulars must be notified by being announced at the end of the communication in the language used for the rest of the communication.
A. Yes. The authorisation details are the same as for social media. The term ‘digital banner advertisement’ is defined under section 4 of the Determination to include static or dynamic banners on websites accessed through internet browsers, or videos that stream when banner advertisements are hovered over. If the communication is a digital banner advertisement, the particulars must be notified:
The placement and manner of notifying the particulars for digital banner advertisements, can be notified in either the static or dynamic banner, or the video.
A. Yes. The authorisation details are the same as for social media. If the communication is a mobile phone application or a computer application, the particulars must be notified:
A. Yes. The term ‘video-sharing’ is defined under section 4 of the Determination to include video-sharing through websites such as YouTube, but does not include streamed radio or television. If the communication is video-sharing, the particulars must be notified by being announced and shown at the end of the communication in the language used for the rest of communication. Therefore, if the communication is on a video-sharing medium, the required particulars should be communicated in the form of a spoken announcement in the same language used for the rest of the communication, and cause all the required particulars to be communicated in the form of images or words, in the same language used for the rest of the communication.
A. Yes. The authorisation details are the same as for social media. The term ‘video-sharing’ is defined under section 4 of the Determination to include video-sharing through websites such as YouTube, but does not include streamed radio or television. If the communication is video-sharing, the particulars must be notified by being announced and shown at the end of the communication in the language used for the rest of communication. Therefore, if the communication is on a video-sharing or cinema medium, the required particulars should be communicated in the form of a spoken announcement in the same language used for the rest of the communication, and cause all the required particulars to be communicated in the form of images or words, in the same language used for the rest of the communication.
A. No. Subsection 321D(5) of the Electoral Act requires printer details, such as the name of the printer who printed the communication and the address of the printer, to be notified, where the communication is a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card. However, similar to other written electoral communications, authorisation details are required to be included in electoral advertisements published in newspapers and magazines. Item 1 of the table at subsection 9(1) of the Determination sets out that if the communication is printed material, the particulars must be notified at the end (or bottom) of the printed material, and in a font size that can be read by a person with 20/20 vision without the use of any visual aid. Subsection 9(2) of the Determination provides an exception to the requirement for the placement of printer details to be at the end of printed material as required by item 1 of the table in subsection 9(1) of the Determination. That is, item 1 of the table in subsection 9(1) does not require the following particulars to be notified at the end of printed material in a journal if those particulars are notified elsewhere in the journal:
For example, the printer details for a notice published in a journal do not need to be notified at the end (or bottom) of the printed material, being the notice, if the printer details are notified elsewhere in the journal.
A. The authorisation requirements for broadcasting apply to political matter and election matter (see Schedule 2 Broadcasting Services Act 1992). This will include electoral matter advertising. Accordingly, the authorisation requirements for broadcasting apply at all times, and not just during election periods.
A. Although the political party has been named, the authorisation requirements for television election advertisements are at the end of the advertisement, in spoken word and in images or text on-screen. The message at the end of the advertisement must include the name of the political party, the town or city in which the party’s head office is located, and the name of the person in the party who authorised the advertisement.
A. Any inquiries or complaints about the obligations placed on broadcasters can be directed to the Australian Communications and Media Authority (ACMA).
A. Particulars that are required by different entities to be notified are at subsection 79A(6) of the Australian Broadcasting Corporation Act 1983, clause 2 of schedule 2 to the Broadcasting Services Act 1992, and at subsection 70A(6) of the Special Broadcasting Service Act 1991. These include the name of the person or entity, the town or city in which the person lives or the relevant town or city of the entity, and if it is a disclosure entity that is not a natural person, the name of the natural person responsible for giving effect to the authorisation.
Section 10 of the Determination provides for the requirements for notifying particulars for the purposes of the subsection 79A(2) of the Australian Broadcasting Corporation Act 1983, subclause 4(2) of Schedule 2 to the Broadcasting Services Act 1992, and subsection 70A(2) of the Special Broadcasting Service Act 1991. These requirements are set out in a table at section 10 of the Determination and differ according to the nature of the communication type.
Accordingly, if the political matter is broadcast on a television service, the broadcaster should cause the required particulars to be broadcast in the form of a spoken announcement in the same language as the rest of the communication, and cause all the required particulars to be broadcast in the form of images or words in the same language as the rest of the communication.
The requirement for particulars to be both announced and shown where communication is a broadcast enables access for vision and hearing-impaired voters. The requirement for particulars to be in the same language of the communications ensures that members of the target audience for the communication can understand the authorisation information.
A. The short answer is no. The AEC has no role in regulating the political content of electoral advertising. The AEC is responsible for ensuring, as far as possible, that electoral advertising does not mislead or deceive voters about the way in which they must cast their vote. For example, how-to-vote cards should not advocate optional preferential voting, because, with limited exceptions, the Act clearly requires full preferential voting. Incomplete ballot papers are informal and unable to be counted.
A. Subsection 329(1) of the Electoral Act makes it an offence to print, publish or distribute, or cause, permit or authorise to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote. Section 329 applies not only to printed matter but also to electoral advertisements broadcast on radio, television, the internet or by telephone. Subsection 329(5) provides that in a prosecution of an offender, it is a defence if it is proved that the person did not know, and could not reasonably be expected to have known, that the matter or thing was likely to mislead an elector in relation to the casting of a vote. The two leading court decisions on the scope of section 329 of the Electoral Act are in Evans v Crichton-Browne (1981) 147 CLR 169 and Peebles v Honourable Tony Burke  FCA 838. At paragraph 10 of the decision in the Peebles case the Court stated that:
“It is clear from reading the entire reasons for judgment of the High Court in Crichton-Brown that the prohibition in s 329 concerns misleading or deceptive conduct which might affect the process of casting a vote rather than the formation of the political judgment about how the vote will be cast. That is, the section concerns conduct which might, for example, lead a voter either to fail to record a valid vote or to record a valid vote but not for the candidate or candidates of the voter's choice. An obvious example would be information which told a voter how to go about completing the ballot paper which was wrong and would result in the casting of an informal vote.”
Accordingly, the test that is applied by the AEC is examining a publication under section 329 is whether the publication merely goes towards the ‘formation of the judgment’ as to who to vote for, rather than the actual act of marking the ballot paper. It is only the later type of publication that misleads a voter that is prohibited. The AEC notes that the distinction between these two things is a question of fact and degree.
A. Unlike section 321D of the Electoral Act which applies at all times, subsection 329(1) is in force only during the formal election campaign. The ‘relevant period’ which is defined in section 322 is the period commencing on the issue of the writs for the election and expiring at the latest time on polling day at which an elector in Australia could enter a polling booth for the purpose of casting a vote in the election.
A. The maximum penalty for a contravention of subsection 329(1) is a fine not exceeding 10 penalty units or imprisonment for a period not exceeding six months, or both, for a person; or a fine not exceeding 50 penalty units for a body corporate.
Under Schedule 2 to the Broadcasting Services Act 1992, which is administered by ACMA, there is an election advertising blackout on all electronic media from the end of the Wednesday before polling day to the end of polling on the Saturday. This three-day blackout effectively provides a ‘cooling off’ period in the lead up to polling day, during which political parties, candidates and others are no longer able to purchase time on television and radio to broadcast political advertising.
The electronic media blackout provisions, and other provisions relating to the broadcasting of ‘political matter’ are administered by ACMA.
A. The Electoral Commission and candidates in an election are able to seek an injunction under section 383 of the Electoral Act. Such an injunction enables orders from the Court to be obtained to prohibit certain conduct or to require certain conduct to be performed.
The following discussion provides a guide as to courses of action that the AEC will take in response to an apparent or alleged breach of the law. However, they are a guide only – the AEC reserves the right to take any other course of action it considers necessary in the circumstances. Further, while compliance with the law is important at all times, the AEC recognises that some breaches of the law are more serious than others. These are described below, for convenience, as ‘more serious’ and ‘less serious’ instances of non-compliance and are used to distinguish significant instances of non-compliance from non-compliance with the precise requirements of the law.
More serious non-compliance is a matter of concern for the AEC at all times. More serious non-compliance involves instances where the purpose of the law, for example, the prevention of anonymous electoral advertising, is undermined by the publication of electoral advertising that fails to provide the elector with the ability to discern the identity of the person responsible for the advertisement. Advertisements which carry the words ‘published by people concerned about…’ represent more serious matters as they do not provide any information as to who is responsible for the advertisement.
While all instances of non-compliance with the law are serious matters, those that occur during federal election periods have the potential to have a more significant and direct impact on the casting of votes. In light of their capacity to directly affect the casting of votes in a federal election, misleading or deceptive publications receive a high priority in the AEC’s compliance activities. Outside of the periods during which provisions relating to misleading or deceptive publications operate, the AEC prioritises anonymous electoral advertisements over advertisements containing less serious instances of apparent non-compliance.
If, the AEC considers there to be a breach of the requirement to include authorisation particulars on communications that contain ‘electoral matter’, generally, the AEC will write to the relevant person seeking that the material be withdrawn until such time as the material is amended so as to comply with the law. If there is continued non-compliance or a more serious breach of the Electoral Act the matter may then be pursued in the Courts with first the seeking of an enforceable undertaking and then the imposition of a civil penalty.
Provisions relating to the actions of broadcasters communicating ‘political matter’ are administered by ACMA.
Complaints must be made in writing addressed to either the Deputy Electoral Commissioner or the Chief Legal Officer of the AEC in Canberra and the complainant should also provide as much information as possible to enable assessment of the alleged breach. If possible, complaints should be accompanied by an original copy of the communication from which the AEC can make a formal assessment of its compliance with the law.
If an original copy cannot be obtained, a copy of the entire document may be forwarded to the AEC. Similarly, in relation to a complaint about electoral communications on the internet, the complaint should, if possible, be accompanied by a printed copy of the web page, showing the communication, from which the AEC can make a formal assessment of its compliance with the law. If complaints with attachments are being sent to the AEC by email, some care needs to be taken to ensure that the attachments are less than 10 megabytes in size and that a read receipt is requested to ensure that they actually are received through the AEC’s systems firewall.
In the absence of a copy of the electoral communication as it appeared on the internet being provided with the complaint, the AEC will require enough information about the internet site in order to locate the communication and make an assessment regarding compliance with the Act.
Information relevant to a complaint, allegation or investigation that is, or could become, subject to Part XXA or Part XXI proceedings (dealing with offences), will not be provided to any person not directly involved with the matter. In all cases after a complaint has been laid, the AEC will not provide any further information to the complainant until the investigation has been completed and any subsequent legal proceedings have been completed. When appropriate the AEC will write to the complainant advising of its decision and actions.
The AEC is able to assist organisations and individuals by informing them of the legislative requirements in relation to authorising electoral communications that relate to a federal election. The AEC is not authorised to approve electoral communications for publication, nor does it provide legal advice on whether a particular electoral communication is in breach of the Act. If you are in doubt about the interpretation of the law in particular circumstances you should seek your own independent legal advice.
The AEC has available a number of publications for people interested in the electoral process including: