Electoral Backgrounder: Electoral communications and authorisation requirements

Updated: 6 March 2018

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.

Authorisation requirements

Q. What is the purpose in requiring electoral communication to have an authorisation?

A. The objects of the authorisation requirements are to promote free and informed voting at elections by enhancing:

  • the transparency of the electoral system, by allowing voters to know who is communicating electoral matter;
  • the accountability of those persons participating in public debate relating to electoral matter, by making those persons responsible for their communications; and
  • the traceability of communications of electoral matter, by ensuring that obligations imposed by the Electoral Act in relation to those communications can be enforced.

Q. What electoral communications require an authorisation?

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:

  • all ‘electoral matter’ in the form of ‘paid for’ advertisements. This includes whether all or part of the distribution or production of the advertisement was ‘paid for’;
  • a broad range of ‘electoral matter’ communicated in the form of promotional items, such as stickers, fridge magnets, leaflets, flyers, pamphlets, notices, posters and How-to-Vote cards; and
  • any other material that is communicated by, or on behalf of, a disclosure entity, that is intended to affect voting in a federal election.

Q. Who or what is a ‘disclosure entity’?

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.

Q. What is electoral matter?

A. An ‘electoral matter’ is defined in subsections 4(1) and (9) of the Electoral Act to be communications of the following kinds:

  1. matter that is intended or likely to affect voting in a federal election; or
  2. matter that contains an express or implicit comment on the election, a political party or candidates, or an issue that is before electors in connection with the election.

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’.

Q. What communications do not require an authorisation?

A. The following types of communication about a federal election do not require an authorisation:

  • clothing or any other item intended to be worn on the body;
  • the reporting of news, presentation of current affairs or editorial content in news media;
  • communication solely for genuine satirical, academic or artistic purposes, or solely for the purpose of announcing a meeting;
  • opinion polling and research relating to voting intentions at a federal election or by-election;
  • communication for personal purposes;
  • communication intended to remain within a notifying entity;
  • real-time communications, where the speaker and any disclosure entity on whose behalf the speaker is communicating, are, or could, reasonably be identified (but not any later communication);
  • skywriting; and
  • graffiti.

Q. When do the new authorisation requirements apply?

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).

Q. Who administers complaints about authorisations?

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.

Q. What is the penalty for not including the required authorisation particulars in an electoral communication?

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).

Authorisations for written communications

Q. What particulars must be included at the end of a written communication?

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:

  • where the person who authorised the communication is an individual, the name of the individual, the full address, suburb or locality at which the person can be contacted and the name and address of the printer;
  • where the communication is authorised by a disclosure entity (e.g. a registered political party) the name of the entity, the address of the entity (e.g. where the entity has a principal office or business premises, the full street address, suburb or locality), the name of the natural person within the disclosure entity responsible for giving effect to the authorisation and the name and address of the printer;
  • where the communication is authorised by an entity that is not a disclosure entity or a natural person (e.g. a company that is not an associated entity) the name of the entity, the address of the entity (e.g. where the entity has a principal office or business premises, the full street address, suburb or locality) and the name and address of the printer;
  • the Determination sets out that for all printed material the particulars must 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.

Authorisations for How-to-Vote cards

Q. What authorisation particulars must be included on a How-to-Vote card?

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.

Authorisations for text messages

Q. Are authorisations required to be included in a text message?

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).

Q. What particulars must be included in the text message?

A. The authorisation particulars on a text message must include:

  • where the person who authorised the communication is an individual, the name of the person and the town or city in which the person lives;
  • where the communication is authorised by a disclosure entity (e.g. a registered political party) the name of the entity, the relevant town or city of the entity and the name of the natural person within the disclosure entity responsible for giving effect to the authorisation;
  • where the communication is authorised by an entity that is not a disclosure entity or a natural person (e.g. a company that is not an associated entity) the name of the entity and the town or city of the entity.

Q. Where must the authorisation particulars appear in the text message?

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:

  1. at the end of the message; or
  2. if the particulars are too long to be included in the message – in a website that can be accessed by a URL included in the message.

Authorisations for social media communications

Q. What type of social media content will require an authorisation?

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:

  • where the person who authorised the communication is an individual, the name of the person and the town or city in which the person lives;
  • where the communication is authorised by a disclosure entity (e.g. a registered political party) the name of the entity, the relevant town or city of the entity and the name of the natural person within the disclosure entity responsible for giving effect to the authorisation;
  • where the communication is authorised by an entity that is not a disclosure entity or a natural person (e.g. a company that is not an associated entity) the name of the entity and the town or city of the entity.

Q. Where must the authorisation particulars appear on social media?

A. As set out in the Determination, if the communication is communicated by social media, the particulars must be notified:

  1. at the end of the communication; or
  2. if the particulars are too long to be included in the word limit of the communication in:
    1. a website accessible by a URL included in the communication; or
    2. a photo included in the communication.

Q. Is an authorisation in the bio sufficient on Facebook or Twitter? Or does every tweet or post have to be authorised?

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.

Q. Will social media content (e.g. Facebook or Twitter) containing ‘electoral matter’ require an authorisation if it is communicated for personal purposes?

A. No. Social media content will not require an authorisation if it is communicated for personal purposes, for instance only to personal friends.

Q. If I repost an online post with my own commentary on an electoral matter, who should authorise my post: the original poster, the service provider or myself?

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.

Q. In a social media post such as Facebook or Twitter, which has an embedded video, is the authorisation at the end of the video sufficient to authorise the post/tweet?

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.

Authorisations for phone calls (including bulk voice calls)

Q. What is included as telephony?

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.

Q. What authorisation particulars must a notifying entity include in a call?

A. The particulars are the same as for social media and must include:

  • where the person who authorised the communication is an individual, the name of the person and the town or city in which the person lives;
  • where the communication is authorised by a disclosure entity (e.g. a registered political party) the name of the entity, the relevant town or city of the entity and the name of the natural person within the disclosure entity responsible for giving effect to the authorisation;
  • where the communication is authorised by an entity that is not a disclosure entity or a natural person (e.g. a company that is not an associated entity) the name of the entity and the town or city of the entity.

Q. When must the authorisation particulars be disclosed in a call?

A. The authorising particulars must be disclosed at the beginning of the call.

Q. Do personal phone calls containing electoral communications require an authorisation?

A. Communications for personal purposes will not require an authorisation.

Q. If a call centre is contracted by a disclosure entity to ring people to communicate electoral matter, who authorised the material?

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.

Authorisations for email communications

Q. Is an email from an individual sufficient to communicate the fact that it is authorised by that individual from the disclosure entity? What if there is no physical address in the regular signature but only a post-box?

A. Emails are a form of electronic communication and the relevant disclosure details are similar to those that apply to communications by social media.

Q. Is an email with a signature block that contains all required authorisation particulars sufficient?

A. Yes. As long as the notifying particulars are contained in the email, it is sufficient to contain the authorisation in the signature block.

Q. Would an email with a link to a website with a large authorisation message be better/sufficient?

A. Emails have room to include the full authorisation particulars therefore a link to a website is not sufficient.

Authorisations for websites

Q. What is a sufficient authorisation for a website? Is an authorisation required on every page, or is a link to a special page specifically authorising the specific communication required?

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:

  • where the person who authorised the communication is an individual, the name of the person and the town or city in which the person lives;
  • where the communication is authorised by a disclosure entity (e.g. a registered political party) the name of the entity, the relevant town or city of the entity and the name of the natural person within the disclosure entity responsible for giving effect to the authorisation;
  • where the communication is authorised by an entity that is not a disclosure entity or a natural person (e.g. a company that is not an associated entity) the name of the entity and the town or city of the entity.

Q. Where should the authorisation appear on the website?

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.

Authorisations for speeches

Q. Who is the authorising person if I read a speech on an electoral matter that has been drafted by somebody else?

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.

Q. Does search advertising require authorisations if it contains electoral matter?

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:

  1. in the footer of the landing page from the URL; or
  2. if the particulars are too long to be included in the word limit of the search advertising – in a website that can be accessed by a URL included in the search advertising.

Authorisations for streamed music

Q. Does streamed music that may contain electoral matter require authorisation particulars?

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.

Q. Do digital banner advertisements that may contain electoral matter require authorisation particulars?

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:

  1. at the end of the banner; or
  2. if the particulars are too long to be included or embedded in the banner – in a website that can be accessed by a URL included in the banner.

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.

Authorisations for mobile phone applications and computer applications

Q. Do mobile phone applications and computer applications that contain electoral matter require authorisation particulars to be included?

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:

  1. at the bottom of the screen on which the application is open; or
  2. if the particulars are too long to be included in the application – in a website that can be accessed by a URL included on the screen on which the application is open.

Authorisations for video sharing applications

Q. Do video sharing applications that contain electoral matter require authorisation particulars to be included?

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.

Authorisations in a cinema

Q. Do films shown in a cinema that contain electoral matter require authorisation particulars to be included?

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.

Authorisations on electoral advertisements published in newspapers and journals

Q. Do the authorisation particulars that apply to other types of written communications (i.e. the inclusion of printer details) also need to be published in an electoral advertisement published in a newspaper or magazine?

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:

  1. the name of the printer who printed the printed material;
  2. the address of the printer.

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.

Personal communications

Q. Do personal communications that contain electoral matter require an authorisation?

A. No.

Authorisation requirements for broadcasters

Q. When do the authorisation requirements apply to ‘political matters’ published by broadcasters?

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.

Q. A campaign advertisement for television features a candidate talking about her party’s policies. The candidate introduces themselves by name and mentions the name of their political party during the advertisement. Has authorisation of the communication containing electoral matter been carried out?

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.

Q. Where do I make complaints about broadcasters?

A. Any inquiries or complaints about the obligations placed on broadcasters can be directed to the Australian Communications and Media Authority (ACMA).

Q. Where are the authorisation requirements?

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.

  • Item 1 of the table establishes the particulars that must be notified if the communication is broadcast on a radio service. If the communication is broadcast on a radio service, the particulars must be announced at the end of the communication in the language used for the rest of the communication.
  • Item 2 of the table establishes the particulars that must be notified if the communication is broadcast on a television service. If the communication is broadcast on a television service, the particulars must be announced and shown at the end of the communication in the same language as the communication.

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.

Misleading or deceptive electoral advertisement and other publications

Q. Does the Electoral Act require truth in electoral advertising?

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.

Q. What does section 329 of the Electoral Act cover?

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 [2010] 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.

Q. When does section 329 of the Electoral Act apply?

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.

Q. What is the penalty for a breach of subsection 329(1) of the Electoral Act?

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.

Electronic media blackout

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.

Injunctions

Q. Who can seek an injunction under the Electoral Act? 

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.

Non-compliance – electoral communication offences

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

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.

Conclusion

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.

Publications

The AEC has available a number of publications for people interested in the electoral process including: