Electoral Backgrounder: Referendum advertising

Updated: 17 February 2015

February 2015

Introduction

1. Electoral Backgrounders are published by the Australian Electoral Commission (AEC) to provide a basic introduction to referendum law, policy and procedures for the information and guidance of all interested parties.

2. This Electoral Backgrounder provides a basic introduction to referendum advertising. 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.

3. This Electoral Backgrounder discusses:

  • Intent of the law
  • Authorisation of referendum advertising – printed matter and videos
  • Referendum advertising – Internet
  • Misleading and deceptive referendum advertisements
  • Truth in political advertising
  • Defamation
  • Electronic media blackout
  • Political advertising bans
  • Non-compliance – referendum advertising offences
  • Other action
  • Complaints

4. The AEC administers the conduct of federal referendums under the provisions of the Referendum (Machinery Provisions) Act 1984 (the Referendum Act). The Referendum Act is available on the Attorney-General's Commonwealth Law website. Unless otherwise specified, all references to sections are to sections of the Referendum Act. Also please note, the words 'voter' and 'elector' are used interchangeably throughout this publication.

5. The AEC also administers the conduct of federal elections which are able to take place on the same day as the voting day for a referendum. The conduct of elections occurs under the provisions of the Commonwealth Electoral Act 1918 (the Electoral Act).

6. Some of the provisions in the Referendum Act that apply to referendum advertising are exactly the same as those in the Electoral Act which apply to electoral advertising. However, there are some differences (e.g. the exemptions to the authorisation requirements in subsection 121(3)) which readers should be aware of.

Background

7. The Australian Constitution can only be amended with the approval of the Australian people, under section 128 of the Constitution. Any proposed alteration to the Constitution must therefore be put to the vote of all eligible electors as a national referendum.

8. A proposed law to alter the Constitution must first be passed by an absolute majority of both Houses of the Federal Parliament. If passed by both Houses, it must be submitted to a national referendum not less than two and not more than six months after it has been passed by the Parliament. In certain circumstances, a proposed law to alter the Constitution can be submitted to a referendum if it is passed on two separate occasions by only one House of the Parliament.

9. Similar to what occurs in voting in a federal election, voting in referendums is compulsory for all eligible electors. Voters are required to write either "Yes" or "No" in the box opposite the question on the referendum ballot paper. The proposed law to alter the Constitution must then be approved by a 'double majority'. That is, the referendum must be approved by both a majority of electors in a majority of the States (i.e. four out of the six States), and also be a majority of all electors throughout Australia.

10. The marking of ballot papers for a referendum was considered by the Federal Court of Australia in the case of Benwell v Gray, Electoral Commissioner [1999] FCA 1532. At paragraphs 26 to 32 of that decision, the Court examined the contentions made by Mr Benwell, on behalf of the Australian Monarchist League, that the only way that a voter could validly cast a vote in a referendum was to use the words "Yes" and "No". His Honour stated at paragraph 26 that:

"It cannot be correct to suggest that the effect of s 24 is that a ballot is formal if, and only if, the voter writes either the word "YES" or "NO" on the ballot paper. To take this view would be to deny any effect to the language of s 93(8). Clearly that sub-section is intended to ensure that effect is given to a ballot paper of a voter according to the voter's clear intention, even if he or she writes neither the word "YES" nor "NO" on the ballot paper."

11. The reasoning that was applied by the Court in that case goes back to the general issue of determining the intention of a voter based on what appears on the face of a ballot paper. The AEC (and its predecessors) have been successfully undertaking this task since the first Federal elections held in Australia. The Court cited the High Court decision in Kane v McClelland (1962) 111 CLR 518 which set out how the intention of a voter was to be ascertained. Since that High Court decision, the Court of Disputed Returns in the matter of Mitchell v Bailey (No. 2) [2008] FCA 692 has provided additional guidance on the process of determining the intention of a voter.

Official Referendum Advertising

12. Section 11 of the Referendum Act requires the AEC, no later than 14 days before voting day, to print and distribute a pamphlet which sets out the arguments for and against any proposed law for the alteration of the Constitution together with a statement showing the textual alterations and additions proposed to be made to the Constitution. Recent amendments to the Referendum Act now require that the AEC distribute the pamphlet containing the Yes/No cases to an address that appears on the Commonwealth electoral Roll. The Electoral Commissioner may also send the pamphlet to any other address that the Electoral Commissioner considers to be appropriate, including to an email address.

13. The arguments for and against the proposed law for the alteration of the Constitution must each be no more than 2 000 words. Each of the Yes/No arguments must be authorised by the majority of Members of Parliament who voted for or against the proposed law in the Parliament and desire to forward such an argument to the Electoral Commissioner within 4 weeks of the passage of the proposed law through both Houses of the Parliament. While the AEC assists in providing Referendum Guidelines which ensure that there is some stylistic consistency between the two arguments, the AEC has no actual involvement in the drafting of the Yes/No cases.

14. Section 11 of the Referendum Act also places some restrictions on the expenditure of Commonwealth funds in respect of the presentation of the Yes/No cases. Subsection 11(4) sets out some specific areas in which such expenditure is authorised including in the preparation, printing and postage of the Yes/No cases. However, there is otherwise a general prohibition on the expenditure of Commonwealth funds in support of either of the two cases. Prior to the conduct of the 1999 referendum, the Parliament enacted laws that suspended the operation of the restrictions on Commonwealth expenditure until after the voting day for each referendum. This enabled the Commonwealth to fund both the Yes and No cases. This funding and support for the Yes and No cases does not involve any action by the AEC. The reason for this is any such action would result in the political neutrality of the AEC being compromised.

Referendum Advertising

15. During elections and referendums the AEC often receives complaints that advertisements are anonymous, misleading and deceptive, or contain political messages that are untrue or defamatory. These complaints usually involve advertisements broadcast on television and radio, or published in newspapers, flyers, pamphlets, how-to-vote cards distributed at polling booths, and posters and signs erected in local neighbourhoods.

16. It is important to note that the Parliament has decided that the Referendum Act should not regulate the content of political messages contained in referendum advertising, except to ensure that such messages are properly authorised, and do not mislead or deceive voters about the way in which a vote must be cast. The AEC has no role or responsibility in deciding whether political messages published or broadcast in relation to a referendum are true or untrue: that is a decision for the voters at the ballot box, and the law of defamation if necessary.

17. This Backgrounder is intended to explain the provisions of the Referendum Act in relatively plain English for the information and guidance of all interested parties. The view of the operation of the law presented here is consistent with advice provided to the AEC by the Office of the Commonwealth Director of Public Prosecutions (DPP), but it must be appreciated that in the final analysis it is for the courts to decide upon the operation of the law in any particular case.

Authorisation of referendum advertisements – printed matter and videos

18. In relation to printed matter, subsection 121(1) requires electoral advertisements to state at the end of a referendum advertisement the name and street address of the person who authorised the advertisement and the name and place of business of the printer. However, subsection 121(1) does not apply to particular items (such as T-shirts, balloons, etc) set out in subsection 121(3), and discussed in further detail below under the heading 'What does not require authorisation?'. Subsection 121(1A) requires that all referendum video recordings contain the name and address of the person authorising the video recording at the end of the recording.

19. It is important to note that referendum advertising must be authorised at all times – not just during the period between the issuing of the writs for a referendum and voting day.

The tests applied by the AEC

20. In the AEC's view, there are two broad approaches for determining whether a particular referendum advertisement requires authorisation under section 121. The first applies to material that refers to the holding of a particular referendum or to the content of the proposed law to amend the Constitution that is covered by the particular referendum. The second applies to whether the material can be "intended or calculated to affect the result of the referendum". Generally speaking, the closer the publication date for the referendum advertisement to the due date for the holding of a referendum, the greater the likelihood that the AEC may conclude that a matter is 'intended or calculated to affect the result of the referendum'. Clearly once a date has been set for a referendum, then the presumption is that all printed and video advertising that includes any of the subject matters covered by the proposed law to amend the Constitution is likely to be required to include the authorisation details set out in section 121.

Details of the person who authorised the advertisement

21. Section 121 requires referendum advertisements to include the name and full street address of the person who authorised the advertisement as well as the name and place of business of the printer of the advertisement at the end of the advertisement. This ensures that anonymity does not become a protective shield for irresponsible or defamatory statements. The inclusion of the street address details enables legal proceedings to be issued and served. The inclusion of the name of the individual person who authorised the advertisement, and the printer's business name, enables the person and business to be named in any legal proceedings that may be issued.

Address of the authoriser

22. The 'address' requirements contained in subsection 121(5) prohibit the use of a post office box and require a full street address and suburb or locality at which the person can usually be contacted during the day. The address does not have to be a residential address.

Place of business of the printer

23. Paragraph 121(1)(b) requires that "the name and place of business of the printer appears at the end thereof". The purpose of this provision is to facilitate the taking of legal action and the serving of legal documents where a person believes that they have been defamed or otherwise have some legal cause of action arising from the publication of the material. Accordingly, the AEC is of the view that the details of the actual street address of the printer at which the business of printing is undertaken is required to be included to comply with this requirement.

Advertisements published in newspapers

24. With respect to newspaper advertising, although paragraph 121(1)(a) requires referendum advertisements in newspapers to contain the name and address of the person who authorised the electoral advertisement, paragraph 121(1)(b) makes it clear that the name and place of business of the printer is not required at the end of an advertisement in a newspaper. Subsections 121(1AB) and (1AC) make it an offence to print, publish or distribute, or cause, permit or authorise the printing, publication and distribution, of referendum advertisements that take up the whole or part of each of two opposing pages of a newspaper, without including the name and address (not being a post office box number) of the person who authorised the referendum advertisement at the end of both pages, except in specific circumstances relating to the layout of the advertisement.

25. Subsection 121(2) provides that the maximum penalty for a contravention of subsections 121(1), (1A) or (1AB) is a fine not exceeding $1 000 for a person, or a fine not exceeding $5 000 for a body corporate.

What does not require authorisation?

26. Subsection 121(3) provides certain exceptions to the usual authorisation requirements. The following electoral advertisements do not require an authorisation and printer details: referendum advertisements on car stickers, T-shirts, lapel buttons and badges, pens, pencils, and balloons. This means that, for example, other publications such as stickers, fridge magnets, wine bottle labels, and cinema slides, for example, that contain referendum advertisements, do require the name and address of the person who authorised them and the name and place of business of the printer to be included.

What do you do if the material has already been produced and you have omitted to authorise it?

27. In those circumstances where material has already been produced without the appropriate authorising information, and it would be expensive to discard the production run, the AEC recommends that additional material, containing the authorising information, be printed and attached to render the advertisement legal (e.g. stickers containing the authorisation).

Headings to referendum advertisements

28. Referendum advertisements in a journal (e.g. newspapers, magazines and other periodicals), whether published for sale or for distribution without charge, must contain an identifying heading stating that it is an 'advertisement'. Section 124 requires the proprietor of a journal to cause the word 'advertisement' to be printed as a headline to the advertisement, in letters not smaller than 10 point. Other special requirements apply to large advertisements spread across two opposing pages of a journal (see paragraph 24 above).

29. There is no requirement for the identification of the authors of 'letters to the editor' in newspapers and journals. Similarly, there is no law requiring the identification of talkback radio callers during an election period.

30. The maximum penalty for a contravention of section 124 is five penalty units. (A single penalty unit is currently equivalent to $180 under s 4AA of the Crimes Act 1914.)

Referendum advertising – Internet

31. Section 121A applies to referendum advertisements intended to affect voting in a referendum where a person has paid for the advertisement to appear on the Internet.

32. It is important to note that section 121A does not define what is an advertisement relating to a referendum. This was deliberate in giving effect to Recommendation 44 of the report of the Joint Standing Committee on Electoral Matters (JSCEM) entitled 'Report of the Inquiry into the Conduct of the 2004 Federal Election and Matters Related Thereto', which led to the inclusion of section 121A and 328A of the Electoral Act. The AEC is of the view that the ordinary natural meaning of the word 'advertisement' applies to the interpretation of section 121A. The Macquarie Dictionary defines 'advertisement' as 'any device or public announcement, as a printed notice in a newspaper, a commercial film on television, a neon sign, etc., designed to attract public attention, bring in custom, etc.'.

33. Accordingly, any paid for announcement on the Internet designed to attract public attention, which is intended to affect voting in a referendum, would appear, on its face, to attract the operation of subsection 121A(1).

34. It is important to note that subsection 121A(2) provides a defence to a contravention of subsection 121A(1) if the material published forms part of a general commentary on a website.

35. The maximum penalty for a contravention of section 121A is ten penalty units. (A single penalty unit is currently equivalent to $180 under s 4AA of the Crimes Act 1914).

Misleading or deceptive electoral advertisements

36. Electors generally rely on official AEC publications and broadcasts for information on when and where to vote in a referendum. The AEC also provides advertising which includes guidance on how to fill out their ballot papers correctly, so as to cast a formal vote. AEC publications and broadcasts also provide advice on how to cast a formal vote.

37. Political parties and other interested individuals and organisations also produce referendum advertising during a referendum campaign to assist voters in choosing whether to cast a Yes or No vote. The print versions of such advertising can take a variety of forms.

38. Although the AEC has no role in regulating the political content of referendum advertising, the AEC is responsible for ensuring, as far as possible, that referendum 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 a form of voting that is not provided for in the Referendum Act.

39. Subsection 122(1) 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 at the referendum. Section 122 applies not only to printed matter but also to referendum advertisements broadcast on radio, television, the internet or by telephone. Subsection 122(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.

40. Unlike sections 121, 121A and 124 (which apply at all times), subsection 122(1) is in force only during the 'referendum period' in relation to the referendum. The 'referendum period' is defined in subsection 3(1) as the period commencing on the issue of the writs for the referendum and expiring at the latest time on voting day at which an elector in Australia could enter a polling booth for the purpose of casting a vote in the referendum.

41. The maximum penalty for a contravention of subsection 121(1) is a fine not exceeding $1 000 or imprisonment for a period not exceeding six months, or both, for a person; or a fine not exceeding $5 000 for a body corporate.

42. The intention of subsection 122(1) is not to regulate the content of political messages directed at influencing the choice of Yes and No cases by voters, but to regulate publications and broadcasts that are directed at influencing the way in which the ballot paper is actually marked. This distinction was upheld by the High Court in Evans v Crichton-Browne (1981) 147 CLR 169, the leading case on the interpretation of the similar provision that is contained in the Electoral Act.

43. In this case, the provision in question was s 161, the relevant part of which is contained in subsection 122(1) of the Referendum Act, so that the following conclusion of the court is equally applicable to subsection 122(1) as it stands today: the words in s 161(e) "in or in relation to the casting of his vote" refer to the act of recording or expressing the elector's political judgment, e.g. in obtaining and marking a ballot paper and depositing it in the ballot box, and not to the formation of that judgment".

44. This means that the AEC has no role or responsibility in handling complaints about allegedly untrue statements in published or broadcast referendum advertisements that are intended to influence the judgment of voters about which of the Yes and No cases they should vote for. Complaints that do fall within the scope of subsection 122(1) are those that relate to referendum publications, broadcasts, internet or telephone messages that are likely to mislead or deceive an elector in relation to the way the ballot paper is marked. This includes marking the ballot paper in such a way that would result in an informal vote being cast.

45. In coming to its conclusion in Evans v Crichton-Browne, the High Court indicated that it will be reluctant to find that the offence provisions of the Act infringe on conduct that is more appropriately covered by the political process:

But even if the paragraph were thought to apply only to those statements affecting a voter's choice of candidate which appear to be statements of fact, that construction would require an election campaign to be conducted in anticipation of proceedings brought to test the truth or correctness of any statement made in the campaign. Indeed any person who published an electoral advertisement containing an incorrect statement of fact might be exposed to criminal proceedings. In a campaign ranging over a wide variety of matters, many of the issues canvassed are likely to be unsuited to resolution in legal proceedings; and a court should not attribute to the Parliament an intention to expose election issues to the potential requirement of legal proof in the absence of clear words.

46. The above High Court decision was also considered in the context of the 2010 election in the cases of Faulkner v Elliott [2010] FCA 884 and Peebles v Honourable Tony Burke [2010] FCA 838, and most recently in the decision of the South Australian Supreme Court in Holmdahl v Australian Electoral Commission (No 2) [2012] SASCFC 110. 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-Browne 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."

47. Accordingly, the test that is applied by the AEC in examining a publication under section 122 of the Referendum Act is whether the publication merely goes towards the "formation of the judgment" as to which case to vote for, rather than the actual act of marking the ballot paper. The AEC notes that the distinction between these two things is a question of fact and degree.

48. Section 122 also extends to radio and television advertising. The courts have not yet considered the application of section 122 to the electronic publication of electoral advertising on the Internet. However, the AEC considers that section 122 does apply to electoral advertising on the Internet.

Truth in political advertising

49. Successive governments have not supported the various JSCEM recommendations to reintroduce truth in referendum and electoral advertising. For example, in the government's response to the 1997 JSCEM report, tabled in Parliament on 8 April 1998, the recommendation was rejected, as follows:

The Government firmly believes that political advertising should be truthful in its content. However, any legislation introduced to enforce this principle would be difficult to enforce and could be open to challenge. Previous Committees have found that it was not possible to legislate to control political advertising and that voters, using whatever assistance they see fit from the media and other sources, remain the most appropriate arbiters of the worth of political claims.

50. It should be noted, however, that Free TV Australia (formerly the Federation of Australian Commercial Television Stations) reviews political advertisements prior to broadcast by commercial television stations for the purpose of:

  • classifying the advertisement under the Commercial Television Industry Code of Practice
  • ensuring the advertisement includes the authorisation tag required by the Broadcasting Services Act 1992 (Clause 4 of Part 2 of Schedule 2) and complies with other requirements on broadcasters under applicable electoral acts (Commonwealth, State or Territory), and
  • protecting broadcasters from liability for publishing defamatory material.

51. The person authorising the referendum advertisement is expected to ensure that the advertisement complies with all relevant laws including the Referendum Act and the laws of defamation.

Electronic media blackout

52. Schedule 2 of the Broadcasting Services Act 1992 which is administered by the Australian Communications and Media Authority (ACMA), imposes an electoral advertising blackout period during an election (Electoral Advertising Backgrounder). However, the AEC's understanding is that, while there are reporting obligations by broadcasters that apply to referendum advertising, there is no blackout for referendum advertising that applies immediately before voting day in a referendum.

Political advertising bans

53. In June 1989, the JSCEM tabled its Report No 4, entitled 'Who pays the piper calls the tune', on minimising the risks of private funding of political campaigns. The JSCEM concluded that the high cost of advertising on television was placing increasing pressures on Australian political parties and candidates to become dependent on corporate funding. This dependence carried the risk of corporate interests bringing undue influence to bear on the federal political agenda. In its examination of the problem, the JSCEM looked at the possibility of legislating for a complete ban on all political advertising, but rejected such an option in the following terms:

While some viewers might support a complete ban on political advertising, it would have a direct effect on freedom of speech by reducing opportunities for discussion during election periods when voters are determining the candidate or party they wish to support.

Most witnesses disagreed with a complete ban on political advertising, claiming that it would have an adverse effect on freedom of speech and in particular would disadvantage citizens and groups who wished to bring issues before the electorate. The beneficiaries of a complete ban would be the existing major parties.

54. The JSCEM decided instead to recommend a 'carrot and stick' approach to the problems raised by corporate donations to political campaigns: the provision of free time by all electronic broadcasters to political parties, and an extension of the requirements for disclosure of political donations.

55. Subsequently, on 3 January 1992 the Political Broadcasts and Political Disclosures Act 1991 came into force. This Act amended the Electoral Act with respect to election funding and disclosure, and inserted a new Part IIID into the Broadcasting Act 1942 to ban political advertising at all parliamentary elections and to provide for free air time for all political parties on television stations. The ban also applied to all government advertising for three months before polling day.

56. However, in August 1992, Part IIID of the Broadcasting Act 1942, which was inserted by the Political Broadcasts and Political Disclosures Act 1991, was struck down by the High Court as unconstitutional (see Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106).

57. Six of the seven Justices of the High Court held that there was a freedom of political communication in relation to political matters inherent in the Constitution. The Constitution is predicated on representative government, and freedom of communication is essential to that system. All of the Justices who recognised an implied freedom also recognised that the freedom was not absolute and could be restricted to the extent that other legitimate public interests required. They held that control of the use of the media for political advertising could be valid in some circumstances. However, five of the Justices found that Part IIID of the Broadcasting Act 1942 went beyond a justifiable restriction of the freedom.

Non-compliance – referendum advertising offences

58. 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.

59. 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.

More serious non-compliance

60. 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 referendum advertising, is undermined by the publication of advertising that fails to provide the elector with the ability to discern the identity of the person responsible for the advertisement. For example, 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.

Less serious non-compliance

61. Examples of less serious instances of non-compliance include:

  • absence of an explicit authorisation in an otherwise clearly identifiable advertisement (State, Territory and Commonwealth Government advertising with clearly displayed government logos, a coat of arms, or the display of the name of a prominent member of a Government, such as the Prime Minister)
  • absence of the word 'advertisement' in an otherwise authorised advertisement in a newspaper
  • absence of the place of business of the printer of an electoral advertisement in an otherwise compliant electoral advertisement
  • absence of a suburb or locality in the street address of an authorisation.

62. While all instances of non-compliance with the law are serious matters, those that occur after the issuing of the writs for a referendum 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 referendum, 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 referendum advertisements over advertisements containing less serious instances of apparent non-compliance.

63. Breaches of section 122, because of their possible impact on the outcome of a referendum, require immediate action. If offending material is not immediately withdrawn or amended, the AEC may take injunction action in accordance with section 139 of the Act.

64. If, the AEC considers there to be a breach of sections 121 or 121A, 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. In relation to a breach of section 124, the AEC will write to the relevant person seeking that any future publication of the same material complies with the law.

65. If there is continued non-compliance or a more serious breach of sections 121, 121A, 122 or 124, the matter may be referred to either, or both, the Australian Federal Police (AFP) and the Director of Public Prosecutions (DPP) for further action. Further, because the electoral impact of a less serious matter may vary according to the circumstances in which it occurs, the AEC may also consider it appropriate to refer a less serious matter to either, or both, the AFP and the DPP.

66. If there is any doubt as to whether there may have been a breach, the matter will be referred to the DPP for advice.

67. In summary, the AEC may adopt any or all of the following strategies in response to an apparent breach of the Act:

  • a request by the AEC to cease and desist
  • injunction action undertaken in the Federal Court to compel compliance
  • referral to the AFP for investigation
  • referral to the DPP for preliminary advice or prosecution.

68. Decisions with respect to the institution of criminal proceedings by the Commonwealth rest with the DPP.

Other action

69. Because many of the referendum offences contained in the Act are not punishable by a term of imprisonment, section 13 of the Crimes Act 1914 applies which enables any person to launch a criminal prosecution against an alleged offender.

70. There is also a risk that if a person has engaged in a contravention of the Act or Regulations, the High Court sitting as the Court of Disputed Returns has the power to declare a referendum void on the grounds of such unlawful activities (see subsection 103(4)).

Complaints

71. 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 referendum advertisement from which the AEC can make a formal assessment of its compliance with the law.

72. 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 referendum advertisements on the Internet, the complaint should, if possible, be accompanied by a printed copy of the web page, showing the advertisement, from which the AEC can make a formal assessment of its compliance with the law.

73. If complaints with attachments are being sent to the AEC by e-mail, 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.

74. In the absence of a printed copy of the advertisement 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 advertisement and make an assessment regarding compliance with the Act.

75. Information relevant to a complaint, allegation or investigation that is, or could become, subject to Part X 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 investigating authorities advise the AEC that it is appropriate to do so. When appropriate the AEC will write to the complainant advising of its decision and actions.

Conclusion

76. The AEC is able to assist organisations and individuals by informing them of the legislative requirements in relation to referendum advertising. The AEC is not authorised to approve referendum advertisements for publication, nor does it provide legal advice on whether a particular advertisement 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.

Endnotes

Parliamentary reports that deal with the subject of electoral advertising may be accessed through any major public library, or the relevant Internet site. For JSCEM reports, contact the JSCEM through the Australian Parliament www.aph.gov.au

Court decisions dealing with the subject of electoral advertising and 'free speech' may be accessed through any major public library, or the Australasian Legal Information Institute www.austlii.edu.au

The Commonwealth Electoral Act 1918 can be accessed through any major public library, or the ComLaw website www.comlaw.gov.au.

Extract from the Australian Constitution

128. This Constitution shall not be altered except in the following manner –

The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.

But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if after an interval of three months the first- mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives.

When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails.

And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen's assent.

No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of electors voting in that State approve the proposed law.

In this section, "Territory" means any territory referred to in section one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives.

Referendums since 1906

Protocol for the investigation of complaints during a Federal Election regarding possible breaches of the Referendum (Machinery Provisions) Act 1984

The most common complaints received by the AEC during the conduct of a referendum concern possible breaches of ss 121, 121A, 122, and 124 of the Act.

Sections 121 and 121A deal with the need to identify the person who takes responsibility for a referendum advertisement; s 122 covers the content of such advertisements where they may mislead or deceive the reader, and s 124 places responsibilities on publishers to ensure that a referendum advertisement is clearly identified as an advertisement.

While this document relates to the process adopted by the AEC during investigations of complaints under these sections, in the course of those enquiries other matters may be disclosed warranting further consideration. In any event the following protocol will be applied.

The Protocol

The AEC will exercise its discretion in the operation of this protocol, commensurate with its obligations under Part X of the Act.

Information relevant to a complaint, allegation or investigation that is, or could become, subject to Part X proceedings, will not be provided to any person not directly involved with the matter.

Complaints must be made in writing addressed to the Deputy Electoral Commissioner and be accompanied by evidence of the material in question; e.g. an original copy of the referendum advertisement or other documents relevant to the allegation. Depending on the nature of the document in question a scanned copy or an emailed photograph may be acceptable. This provides the context for preliminary assessment of the matter and also enables relevant evidence to be tendered in court if proceedings are undertaken at a later date. The complainant should also provide as much additional information as possible to enable assessment of the alleged breach. The AEC will immediately acknowledge receipt of the complaint.

If the AEC considers there to be a breach of ss 121 or 121A, 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. In relation to a breach of s 124, the AEC would expect any future publication of the same material to comply with the law.

Breaches of s 122, because of their possible impact on the outcome of an election, require immediate action. If offending material is not withdrawn, or amended immediately, the AEC may seek injunctive relief in accordance with s 139 of the Act.

If there is any doubt as to whether there may have been a breach, the matter will be referred to the DPP for advice. If that advice indicates a breach of sections 121, 121A, 122 or 124, generally, the AEC will follow the steps set out above.

If there is continued non-compliance or a more serious breach, the matter may be referred to either, or both, the AFP and the DPP for further action.

In all cases after a complaint has been laid, the AEC will not provide any further information to the complainant until the investigating authorities advise the AEC that it is appropriate to do so. When appropriate, the AEC will write to the complainant advising of its decision and actions.

The AEC recognises that all complaints during the referendum period must be handled promptly. As some complaints may require the AEC to seek external advice (from for example, the DPP), it is not possible to set a minimum response time. However, the AEC will generally aim to respond to all complaints within one day of receipt.

Further information in relation to compliance with the Act is set out in the AEC’s Electoral Backgrounder publications.