Electoral Backgrounder: Electoral and referendum communications and authorisation requirements

Updated: 28 April 2023

The Australian Electoral Commission (AEC) publishes Backgrounders to introduce electoral and referendum law, policy and procedures as information and guidance to all stakeholders.

Purpose and disclaimer

The content of this Backgrounder is a guide only. The AEC does not approve electoral or referendum communications for publication, nor does the AEC provide legal advice on whether a particular communication complies with the legislative requirements. The AEC assesses communications on a case-by-case basis.

If you are unsure about the requirements in your circumstances, seek your own independent legal advice. The AEC’s guidance is – ‘when in doubt, authorise it’.

The AEC reserves the right to take any available action to enforce the authorisation requirements.

Note: The authorisation requirements for broadcast political communications (either by television or radio) generally align with the authorisation requirements for electoral communications. The Australian Communications & Media Authority (ACMA) regulates broadcast political communications. Please refer to the ACMA for further information.

Legislation

The authorisation requirements are established by the following legislation:

Note: In March 2023, Parliament passed the Referendum (Machinery Provisions) Amendment Act 2023 which amended the Electoral Act and the Referendum Act. Relevantly, amended Parts include the authorisation and funding and disclosure schemes. You should ensure you are complying with the latest requirements.

Role of the AEC

The AEC is responsible for administering the laws in the Electoral Act and the Referendum Act that deal with communication of electoral matter and referendum matter.

The AEC does not regulate:

  • political communications that are broadcast by television and radio – this is the responsibility of the ACMA;
  • electoral communications for local or state elections – this is the responsibility of the relevant State/Territory Electoral Commission;
  • unsolicited phone calls or text messages – ACMA administers the Spam Act 2003 and the Do Not Call Register Act 2006 and we understand these Acts also do not apply to the conduct of registered political parties; or
  • truth in political advertising (other than a narrow offence relating to misleading and deceptive communications in a federal election – more info is here).

In addition, the AEC has no power to restrict the amount or method of electoral communications.

Why authorise electoral and referendum communications

The purpose of the authorisation requirements is to promote free and informed voting at federal electoral or referendum events by enhancing:

  • the transparency of the electoral system, by allowing voters to know who is communicating electoral matter or as it relates to referendums;
  • the accountability of those persons participating in public debate relating to electoral or referendum matter, by making those persons responsible for their communications;
  • the traceability of communications of electoral or referendum matter, by ensuring that obligations imposed by the Electoral Act and the Referendum Act in relation to those communications can be enforced; and
  • the integrity of the electoral system, by ensuring that only those with a legitimate connection to Australia are able to influence Australian elections.

What communications need to be authorised

The following communications need to be authorised:

  • certain communications containing electoral matter;
  • certain communications containing referendum matter; and
  • certain broadcast communications containing election matter.

This Backgrounder provides guidance for the authorisation requirements for these different types of communications.

Authorisation by foreign campaigners is prohibited

It is a breach of the Electoral Act and the Referendum Act for a foreign campaigner to authorise electoral or referendum communications.

A foreign campaigner is, broadly, an individual or entity that does not have a connection with Australia. For example:

  • a body politic of a foreign country, or part of such a body politic;
  • a body politic of a part of a foreign country, or part of such a body politic;
  • a foreign public enterprise;
  • an entity (whether or not incorporated) that does not meet any of the following conditions:
    • the entity is incorporated in Australia;
    • the entity’s head office is in Australia;
    • the principal place of activity of the entity is, or is in, Australia;
  • an individual who is neither an elector, nor an Australian citizen, nor an Australian resident, nor a New Zealand citizen who holds a Subclass 444 (Special Category) visa.

Note: there are also expenditure restrictions for foreign campaigners, see here.

Electoral communications


Q. What is an electoral communication?

A. An electoral communication is the communication of ‘electoral matter’.

Q. What is ‘electoral matter’?

A. ‘Electoral matter’ is matter that is communicated, or intended to be communicated, for the dominant purpose of influencing the way electors vote in a federal election of a member of the House of Representatives or of Senators for a State or Territory (section 4AA of the Electoral Act).

Subsections 4AA(1)-(5) contain further guidance to determine whether matter is ‘electoral matter’. For example, unless the contrary is proved, the dominant purpose of a communication is presumed to be electoral matter (by section 4AA(3)), if the matter expressly promotes or opposes:

  • a political entity, to the extent that the matter relates to a federal election; or
  • a member of the House of Representatives or a Senator, to the extent that the matter relates to a federal election.

The following matters must be taken into account when determining the dominant purpose of a communication or intended communication of matter (under section 4AA(4)):

  • whether the communication or intended communication is or would be to the public or a section of the public;
  • whether the communication or intended communication is or would be by a political entity or significant third party (within the meaning of Part XX of the Electoral Act);
  • whether the matter contains an express or implicit comment on a political entity, a member of the House of Representatives or a Senator;
  • whether the communication or intended communication is or would be received by electors near a polling place;
  • how soon a federal election is to be held after the creation or communication of the matter;
  • whether the communication or intended communication is or would be unsolicited.

Q. Which communications of electoral matter require an authorisation?

A. The communication of electoral matter will require an authorisation if it is:

  • a paid advertisement – including where all or only part of the distribution or production of the advertisement was ‘paid for’;
  • a print communication – such as stickers, fridge magnets, leaflets, flyers, pamphlets, notices, posters and how-to-vote cards; or
  • communicated by, or on behalf of, a disclosure entity (in all mediums).

Examples

Example 1: A member of the House of Representatives or Senator publishes a newsletter in that person’s electorate or State which promotes that person’s work and their party’s policies / actions.

Whether this newsletter is electoral matter will depend on the proximity of the publication to the next federal election. To be electoral matter, the matter must be communicated for the dominant purpose of influencing the way electors vote in a federal election. As such, this will be a matter of fact based on the content of the communication and the timing of its release.

Scenario A: A member of the House of Representatives publishes a newsletter that is dropped in the letterboxes of houses in that member’s electorate after the writs for a federal election have been issued. The newsletter promotes the member’s work and the policies of the member’s registered political party. In this scenario, the newsletter is likely to satisfy the factors in s 4AA to be electoral matter, namely the proximity of the next federal election, that the newsletter promotes a ‘political entity’ (i.e. a member of the House of Representatives), the communication is public and it is unsolicited.

Scenario B: A member of the House of Representatives publishes a newsletter that is dropped in the letterboxes of houses in that member’s electorate six months after a federal election. The newsletter introduces the new member for the electorate, provides contact details of the member’s electoral office, outlines the policies and achievements of the member’s party so far but the newsletter does not mention voting or a federal election. In this case the newsletter would be unlikely to be electoral matter. Although the newsletter is to the public and is unsolicited, the matter is not communicated for the dominant purpose of influencing the way electors vote in a federal election given the next federal election is not due for up to three years and there is no explicit mention of a federal election. Whilst the member receives promotion as a result of the newsletter’s distribution, the dominant purpose of the communication is not to influence electors or promote the member in relation to a federal election.

Example 2: The leader of a registered political party publishes a video on social media promoting the party’s policy position/action on a particular matter

Whether the video will contain electoral matter will depend on the timing and content of the video in the same way as the newsletter in Example 1. However, the video can be circulated and can continue to be viewed on social media well after it is published. A social media video promoting a policy announcement six months after an election could become an electoral issue in two years. At that point it will be too late to authorise the video as it may have been shared and circulated. It is therefore recommended that where a political entity publishes matter on social media it should contain an imprinted authorisation, such as at the bottom of an image or as the last slide or image of a video.

Example 3: A non-government organisation responds to a Government policy announcement

As part of the budget, the Government announces a package of public policies intended to address homelessness. A national peak body for homelessness organisations issues a media release which welcomes some of the proposals, but also outlines concerns with some of them. The media release states that the package as a whole won’t be enough to make significant progress addressing the problem of homelessness in Australia. The media release also states a number of public policies which the peak body would like the Government to adopt. The CEO of the peak body reiterates these points in a professionally-produced video interview. The media release and a link to the video interview are shared on social media and distributed to the peak body’s members in a weekly email newsletter. These communications (the media release, the interview, the social media post and the newsletter) are not likely to be electoral matter, as their dominant purpose is not to influence the way electors vote in an election. Rather, the dominant purpose is to educate the public, raise awareness and encourage debate on a public policy issue.

Example 4: A non-government organisation supports the policy of a candidate

Two candidates are contesting a seat in the upcoming election:

  • Candidate A’s flagship policy is charging entry fees for users of interstate highways.
  • Candidate B is firmly opposed to this policy proposal, and campaigns against charging entry fees.

An advocacy group focussed on public fiscal sustainability supports Candidate A’s proposal, as it would further their mission of ensuring future generations are not subject to public debt. The advocacy group conducts a public education campaign seeking to educate the public about the role resource charging can play in fiscal sustainability. The factors in section 4AA(4) must be considered in determining whether the advocacy group’s campaign is, or is not, electoral matter. The key question that must be answered, using these factors and any other relevant matters (such as a statement of intent, or program logic) is: is the advocacy group’s dominant purpose in conducting the campaign to educate the public, or to influence voters so that a candidate more favourable to their policy position on the issue is elected? Section 4AA(4) factors relevant to answering this question include the following:

  • Para (b): Is the advocacy group a registered political entity or significant third party or third party?
  • Para (c): Did any of the campaign materials contain an express or implicit comment on one of the candidates, or their parties?
  • Para (d): Were campaign materials received by electors near a polling place?
  • Para (e): How soon before the election (including pre-polling, if pre-polling is prevalent in that seat, in that election) were campaign materials distributed?
  • Para (e): Did campaign material distribution stop after the election?

More affirmative answers to these questions would make it more likely the campaign’s dominant purpose is to influence the way electors vote in an election.

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

A. A ‘disclosure entity’ is defined in section 321B of the Electoral Act to include:

  • a registered political party;
  • a significant third party (within the meaning of Part XX);
  • a third party (within the meaning of Part XX);
  • an associated entity (within the meaning of Part XX);
  • a senator or a member of the House of Representatives;
  • candidates in a federal election or by-election (including a person who was a candidate for the House of Representatives in the previous 4 years, or for the Senate in the previous 7 years); and
  • any other person or entity that has to lodge a donation or electoral expenditure return under Part XX of the Electoral Act.

A ‘disclosure entity’ that is not an individual is required to include more details in their authorisation of an electoral communication (e.g. see Items 1 and 2 of the table in section 321D(5) of the Electoral Act).

Who authorises an electoral communication

Q. Who is responsible for authorising an electoral communication?

A. The notifying entity is responsible for ensuring an electoral communication has an appropriate authorisation (section 321D(5)).

Q. Who or what is the 'notifying entity'?

A. A ‘notifying entity’ is defined in sections 321D(1)(a)–(c) of the Electoral Act to be:

  • for a paid advertisement, the person who approved the content of the electoral advertisement (whether or not the person who approved the content paid for the distribution or production of the advertisement); or
  • for a print communication, the person who approved the content of the matter that is communicated; or
  • for a matter that is communicated on behalf of a disclosure entity, the disclosure entity.

The ‘notifying entity’ is responsible for ensuring that certain particulars set out in the table in section 321D(5) are included in any communications that contain ‘electoral matter’.

A matter may be communicated on behalf of a disclosure entity whether or not the entity pays for the communication of the matter. For example, where a candidate, Senator or member of the House of Representatives communicates electoral matter referring to the policies or decisions of that person’s political party, it will be assumed that this matter is communicated on behalf of the political party and therefore the political party is the notifying entity, even if the person receives indirect promotion as a result. However, if a candidate, Senator or member of the House of Representatives is simply advising voters in their electorate about their program of visits to different towns, this electoral matter may not necessarily be communicated on behalf of the political party. In this case it will be assumed that the matter is communicated by the candidate, Senator or member of the House of Representatives and that person is the notifying entity.

Note that the person or entity who authorises the communication may also have a disclosure obligation under Part XX of the Electoral Act if they incur expenditure on electoral matter above the disclosure threshold.

What particulars must be included in the authorisation of an electoral communication

Q. What are the authorisation particulars?

The content of the authorisation particulars will depend on the type of communication and who is responsible for the communication. Please refer to the table in section 321D(5) of the Electoral Act which shows the required authorisation particulars.

Note: under section 321D(5A) or (5B) registered political parties must use either the name of the party as it appears on the Register of Political Parties (registered name) or a condensed version of a registered name. The condensed name can either be a registered abbreviation of a registered branch/division of a political party or the name which results from omitting any of the following words from a registered name:

  • an abbreviation which immediately follows the full form of a word
  • ‘Incorporation’ or its abbreviation, ‘Inc.’
  • ‘of Australia’ or ‘Australia’ (if ‘Australia is the final word of the registered name), or
  • any words or word indicating the name of a registered branch or division for a political party.

For example: the registered name ‘Quokka Party 5 of Australia Inc.—NSW’ may be notified as ‘Quokka Party.’

Disclosure entities that are not registered political parties must use the name which appears on the Transparency Register.

This flow chart may assist you in determining your authorisation requirements.

Q. What is the relevant town or city of the notifying person or entity?

A. The relevant town or city will depend on circumstances of the individual or entity authorising the communication:

  • if the authoriser has a principal office, the town or city in which the office is located; or
  • if the authoriser does not have a principal office but does have premises from which the entity operates, the town or city in which the premises of the authoriser is located; or
  • otherwise:
    • the name of the town or city in which the authoriser lives; or
    • for an entity, the name of the town or city of the individual who gives effect to the authorisation lives.

A postcode is not legally required but it is up to the authoriser (individual or entity) to what form the authorisation will take in its final form. A PO Box address is not sufficient for the street address of the person or entity.

Q. What are the language requirements for authorisations particulars?

A. The language requirements for communications are set out in s 11(4) and s 12(4) of the Determination as follows:

  • if the communication is only in English, then the particulars must only be notified in English;
  • if the communication is only in a language other than English, then the particulars must be notified in both English and the language used for the rest of the communication;
  • if the communication is in 2 or more languages, the particulars must be notified in both English and at least one of the languages (other than English) used in the communication.

How must the authorisation particulars be formatted

Printed communications (examples: posters, pamphlets, notices, how-to-vote cards, stickers, flyers)

Q. Where must the authorisation particulars appear in printed communications?

A. The particulars must be printed at the end of the communication (s 11(2)(b) of the Determination).

Q. How must the authorisation particulars on printed communications be formatted and placed?

A. The authorisation particulars must meet all of the formatting requirements in s 11(3) of the Determination, i.e. the particulars must:

  • be reasonably prominent;
  • be legible at a distance at which the communication is intended to be read;
  • not be placed over complex pictorial or multi-coloured backgrounds;
  • be in a text that contrasts with the background on which the text appears, and;
  • be printed in a way that the particulars will not fade, run or rub off.

To ensure compliance with these formatting requirements, the colour of the authorisation particulars should not bleed or blend in with the background colour. If a person or entity seeking to print an electoral communication is uncertain about appropriate colours, then seek advice from printers on what text colour will contrast best with the background colours.

If there are time sensitivities, it is possible for a sticker to be used to affix the authorisation particulars to the printed communication. However, care must be taken to ensure that the sticker does not fade or fall off and therefore cause the printed communication to be in breach of the authorisations requirements.

Examples of circumstances that the AEC considers are not compliant with the Determination

Example 1 – A candidate’s corflute is in an A-frame outside 6m from the entrance of a polling place. The frame covers the authorisation particulars at the bottom of the corflute. The particulars are not legible in this scenario.

Example 2 – A billboard promoting a candidate is displayed on the side of a major road. The background is a picture of the beach which prominently shows the sandy shore and the authorisation particulars are in a thin, white font. The particulars are not reasonably prominent, legible at the distance they are intended to be read or do not contrast with the background in this scenario. In addition, the particulars are placed over a complex pictorial background.

Example 3 – A significant third party places an unframed corflute outside 6m from the entrance of a polling place. The corflute is predominantly canary yellow and the authorisation particulars are white. The text of the particulars do not contrast sufficiently with the background.

Q. Do the authorisation particulars for electoral matter published in newspapers and journals differ from the authorisation particulars for other types of printed communications?

A. No. The authorisation particulars for electoral matter published in newspapers and journals aligns with the authorisation particulars for other types of printed communications.

Q. Do the printer details need to be included on the authorisation of printed communications?

A. No. 2021 amendments to the Electoral Act removed the requirement for the authorisation of printed electoral matter to include the printer details.

Other communication types (examples: videos, social media posts, electronic billboards, websites) including non-printed paid electoral advertising

Q. How must the authorisation particulars on other communications (i.e. non-printed communications) be formatted and placed?

A. The authorisation particulars must meet all of the formatting requirements in s 12(3) of the Determination, i.e. the particulars must:

  • be reasonably prominent;
  • be legible at a distance at which the communication is intended to be read;
  • not be placed over complex pictorial or multi-coloured backgrounds; and
  • be in a text that contrasts with the background on which the text appears.

The placement of the authorisation particulars for other communications depends on the type. These are addressed in more detail below.

Audio Communications (including speech, music or other sounds but excluding radio)

Examples: phone calls (including bulk phone calls), podcasts, streamed in an app or on a website

Q. Where must the authorisation particulars be placed?

A. At the beginning of the communication, s 12(2)(a) of the Determination.

Q. Do personal phone calls containing electoral matter 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 must authorise 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.

Q. Do live speeches containing electoral matter need to be authorised?

A. No. Speeches that are communicated live at a meeting do not require authorisation (section 321D(4) of the Electoral Act). But any subsequent communication (including republishing online) of that speech may require an authorisation.

Q. Who is the authorising person if I read a speech with 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.

Video Communications (including Facebook live (repost), Tiktok posts, social media video ads, Youtube videos)

Q. Where must the particulars be placed?

A. The authorising particulars must be announced and shown at the end of the communication, s 12(2)(b) of the Determination.

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

A. Yes. The authorisation details for films that contain referendum matter are the same as for any other video, or communication which consists of moving visual images with speech, music or other sounds (see s12(2)(b) of the Determination).

Communications in the form of an electronic billboard, electric road sign or other similar device

Q. What authorisation particulars must be included an electronic billboard, electric road sign or other similar device?

A. The authorisation particulars for electronic billboards and other similar devices must be at the end of the communication, s 12(2)(c) of the Determination.

Any other form of communication

Q. Where do the authorisation particulars need to be placed for any other types of non-printed communications?

A. At the end of the communication or on a webpage that can be accessed by a URL that is included, either in whole or as a hyperlink.

Q. Do text messages require an authorisation?

A. Yes. If the text message contains electoral matter then the text message is required to include authorisation particulars.

Q. Do social media communications require an authorisation?

A. Depends. Social media content (e.g. communications on Facebook, Twitter, Instagram, etc.) will require an authorisation if the communication includes electoral matter that is communicated:

  • by or on behalf of a disclosure entity (e.g. a candidate or a political party), or
  • in a paid advertisement on social media (including communications which all or part of the distribution or production has been paid for).

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

A. Section 12(2)(d) of the Determination requires the particulars must be notified through one or more of the following ways:

  • at the end of the communication, and/or;
  • if the notifying entity is an individual (for example a candidate, senator or member of the House of Representative), in the ‘About Us’ or ‘Contact Us’ section (however described) that relates to the individual and that is directly linked to, or can be access by clicking a link in, the communication.

Examples

Example 1: A member of the House of Representatives or Senator posts on Twitter during an election period about their campaign and why electors should vote for them.

Section 12(d)(iv) of the Determination allows a notifying entity who is an individual, such as a candidate or Senator or member of the House of Representatives to place their authorisation particulars in the ‘About Us’ or ‘Contact Us’ section (however described) if that section is directly linked to, or can be accessed by, clicking a link in the communications. In these circumstances, every social media post does not need to be authorised with the exception of paid electoral advertising.

Note 1: this section does not allow entities or groups, such as registered political parties, significant third parties or associated entities to use this feature. If these entities make social media posts containing electoral matter, every single post must include the authorisation particulars.

Note 2: this section applies to text posts only. If an individual is publishing a Facebook live to remain on their page, an Instagram video or a TikTok, then this communication falls within a video communication and the authorisation particulars must be spoken and announced at the end.

Example 2: A candidate pays a social media platform for a post that contains electoral matter to be sponsored (a paid electoral advertisement). The advertisement is in the form of a text post above an image.

To achieve the objects of the Electoral Act, every paid electoral advertisement must include the authorisation particulars at the end of the individual communication. This includes paid electoral advertisement published by a candidate, member of the House of Representatives, a Senator or any other individual. The author of the content must have regard to the fact that the post can be reposted/shared, and that the post may be viewed in a different format, such as on a computer or on a mobile.

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 to personal friends only.

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. Depends. If the original post contains electoral matter that required authorisation, it must be authorised by the original communicator. If you repost this original post:

  • as part of a paid electoral advertisement, you must authorise the advertisement
  • on behalf of a disclosure entity (e.g. a candidate or political party), you must authorise the reposted communication
  • for personal purposes, you are not required to authorise your post.

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 office box?

A. The authorisation requirements for emails containing electoral matter are the same as those for other ‘non-printed’ types of communication – i.e. text messages, social media platforms etc. (as discussed above).

Under the definition of ‘relevant town or city’ in section 321B of the Electoral Act, the name of a town or city must be included in the authorisation; a post office box is not sufficient. Please refer above for the definition of ‘relevant town or city’.

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 sufficient?

A. Authorisation particulars must be included in an email in one or more of the following ways:

  • at the end of the communication; and/or
  • on a webpage that can be access by a URL that is included, either in whole or as a hyperlink, at the end of the communication.

Q In relation to websites, is an authorisation required on every page, or is a link to a special page specifically authorising the specific communication required?

A. The authorisation for a website that contains electoral matter should appear in the footer of the website (s 12(2)(d)(iii) of the Determination).

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

A. Yes. The authorisation particulars are similar to those that apply to social media or webpages. Section 12(2)(d) of the Determination requires the authorisation particulars must be either:

  • at the end of the communication; and/or
  • on a webpage that can be accessed by a URL link, that is included at the end of the communication.

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

A. Yes. The authorisation details for mobile phone and computer applications are to be:

  • at the end of the banner;
  • on a webpage that can be accessed by a URL link, that is included at the end of the communication.

Q. Where should the authorisation appear for mobile phone applications and computer applications?

A. For a mobile phone application or a computer application, s 12(2)(d) of the Determination requires the particulars must be notified:

  • at the end of the communication; and/or
  • on a webpage that can be accessed by a URL link, that is included at the end of the communication.

Referendum communications

Note: In March 2023, Parliament passed the Referendum (Machinery Provisions) Amendment Act 2023 which amended the Electoral Act and the Referendum Act. Relevantly, amended Parts include the authorisation and funding and disclosure schemes. You should ensure you are complying with the latest requirements.


Q. What is a referendum communication?

A. A referendum communication is the communication of ‘referendum matter’.

Q. What is ‘referendum matter’?

A. ‘Referendum matter’ is matter that is communicated, or intended to be communicated, for the dominant purpose of influencing the way electors vote at a referendum (section 3AA of the Referendum Act).

Subsections 3AA(1)-(6) contain further guidance to determine whether matter is ‘referendum matter’. For example, unless the contrary is proved, the dominant purpose of a communication is presumed to be referendum matter (by section 3AA(4)), if the matter expressly promotes or opposes a proposed law for the alteration of the Constitution, to the extent that the matter relates to a referendum.

The following matters must be taken into account when determining the dominant purpose of a communication or intended communication of matter (under section 3AA(5)):

  • whether the communication or intended communication is or would be to the public or a section of the public;
  • whether the matter contains an express or implicit comment on a proposed law for the alteration of the Constitution;
  • whether the communication or intended communication is or would be received by electors near a polling place;
  • how soon a referendum is to be held after the creation or communication of the matter;
  • whether the communication or intended communication is or would be unsolicited.

Q. Which referendum communications require an authorisation?

A. The following types of referendum communications require an authorisation:

  • paid advertisements - including where all or only part of the distribution or production of the advertisement was ‘paid for’;
  • print communications - such as stickers, fridge magnets, leaflets, flyers, pamphlets, notices, posters and how-to-vote cards; or
  • communications by, or on behalf of, a disclosure entity (in all mediums).

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

A.  A ‘disclosure entity’ is defined in section 110A of the Referendum Act to include:

  • a registered political party;
  • a significant third party (within the meaning of Part XX of the Electoral Act);
  • a referendum entity;
  • an associated entity (within the meaning of Part XX of the Electoral Act);
  • a senator or a member of the House of Representatives; and
  • any other person or entity that has to lodge a donation or electoral expenditure return under Part XX of the Electoral Act.

A ‘disclosure entity’ that is not an individual is required to include more details in their authorisation of a referendum communication (e.g. see Items 1 and 2 of the table in section 110C(5) of the Referendum Act).

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

A.  A ‘referendum entity’ is defined in section 3(1) of the Referendum Act to mean a person or entity that incurs referendum expenditure during a referendum expenditure period that exceeds the disclosure threshold. See section 3AAA and Part VIIIA of the of the Referendum Act for further information.

Who authorises a referendum communication

Q. Who is responsible for authorising a referendum communication?

A. The notifying entity is responsible for ensuring a referendum communication has an appropriate authorisation (section 110C(5)).

Q. Who or what is the 'notifying entity'?

A. A ‘notifying entity’ is defined in sections 110C (1)(a)(c) of the Referendum Act to be:

  • for a paid advertisement, the person who approved the content of the referendum advertisement (whether or not the person who approved the content paid for the distribution or production of the advertisement); or
  • for print communications, the person who approved the content of the matter that is communicated; or
  • for a matter that is communicated on behalf of a disclosure entity, the disclosure entity.

The ‘notifying entity’ is responsible for ensuring that certain particulars set out in the table in section 110C(5) are included in any communications that contain ‘referendum matter’.

A matter may be communicated on behalf of a disclosure entity whether or not the entity pays for the communication of the matter. For example, where a Senator or member of the House of Representatives communicates referendum matter referring to the policies or decisions of that person’s political party, it will be assumed that this matter is communicated on behalf of the political party and therefore the political party is the notifying entity, even if the person receives indirect promotion as a result. However, if a Senator or member of the House of Representatives is simply advising voters in their electorate about their program of visits to different towns, this referendum matter may not necessarily be communicated on behalf of the political party. In this case it will be assumed that the matter is communicated by the Senator or member of the House of Representatives and that person is the notifying entity.

Note that the person or entity who authorises the communication may also have a disclosure obligation under Part VIIIA of the Referendum Act if they incur expenditure on referendum communications above the disclosure threshold.

What particulars must be included in the authorisation of a referendum communication

Q. What are the authorisation particulars?

The content of the authorisation particulars will depend on the type of communication and who is responsible for the communication.  Please refer to the table in section 110C(5) of the Referendum Act  which shows the required authorisation particulars.

This flow chart may assist you in determining your authorisation requirements.

Q. What is the relevant town or city of the notifying person or entity?

A. The relevant town or city will depend on circumstances of the individual or entity authorising the communication:

  • if the authoriser has a principal office, the town or city in which the office is located; or
  • if the authoriser does not have a principal office but does have premises from which the entity operates, the town or city in which the premises of the authoriser is located; or
  • otherwise:
    • the name of the town or city in which the authoriser lives; or
    • for an entity, the name of the town or city of the individual who gives effect to the authorisation lives.

A PO Box address is not sufficient for the street address of the person or entity.

Q. What are the language requirements for authorisations particulars?

A. The language requirements for referendum communications are set out in s 11(4) and s 12(4) of the Determination as follows:

  • if the communication is only in English, then the particulars must only be notified in English;
  • if the communication is only in a language other than English, then the particulars must be notified in both English and the language used for the rest of the communication;
  • if the communication is in 2 or more languages, the particulars must be notified in both English and at least one of the languages (other than English) used in the communication.

What are the formatting requirements for the authorisation particulars

Printed communications (examples: posters, pamphlets, notices, how-to-vote cards, stickers, flyers)

Q. Where must the authorisation particulars appear in printed communications?

A. The particulars must be printed at the end of the communication (s 11(2)(b) of the Determination).

Q. How must the authorisation particulars on printed communications be formatted and placed?

A. The authorisation particulars must meet all of the formatting requirements in s 11(3) of the Determination, i.e. the particulars must:

  • be reasonably prominent;
  • be legible at a distance at which the communication is intended to be read;
  • not be placed over complex pictorial or multi-coloured backgrounds;
  • be in a text that contrasts with the background on which the text appears, and;
  • be printed in a way that the particulars will not fade, run or rub off.

To ensure compliance with these formatting requirements, the colour of the authorisation particulars should not bleed or blend in with the background colour.  If a person or entity seeking to print a referendum communication is uncertain about appropriate colours, then seek advice from printers on what text colour will contrast best with the background colours.

If there are time sensitivities, it is possible for a sticker to be used to affix the authorisation particulars to the printed communication. However, care must be taken to ensure that the sticker does not fade or fall off and therefore cause the printed communication to be in breach of the authorisations requirements.

Examples of circumstances that the AEC considers are not compliant with the Determination

Example 1 – A corflute which expressly comments on a proposed law for the alteration of the Constitution is in an A-frame outside 6m from the entrance of a polling place. The frame covers the authorisation particulars at the bottom of the corflute. The particulars are not legible in this scenario.

Example 2 – A billboard which expressly comments on a proposed law for the alteration of the Constitution is displayed on the side of a major road. The background is a picture of the beach which prominently shows the sandy shore and the authorisation particulars are in a thin, white font. The particulars are not reasonably prominent, legible at the distance they are intended to be read or do not contrast with the background in this scenario. In addition, the particulars are placed over a complex pictorial background.

Example 3 – A significant third party places an unframed corflute outside 6m from the entrance of a polling place. The corflute is predominantly canary yellow and the authorisation particulars are white. The text of the particulars do not contrast sufficiently with the background.

Q. Do the authorisation particulars for referendum matter published in newspapers and journals differ from the authorisation particulars for other types of printed communications?

A. No. The authorisation particulars for referendum matter published in newspapers and journals aligns with the authorisation particulars for other types of printed communications.

Q. Do the printer details need to be included on the authorisation of printed communications?

A. No. 2023 amendments to the Referendum Act removed the requirement for the authorisation of printed referendum matter to include the printer details.

Other communication types (examples: videos, social media posts, electronic billboards, websites) including non-printed paid electoral advertising

Q. How must the authorisation particulars on other communications (i.e. non-printed communications) be formatted and placed?

A. The authorisation particulars must meet all of the formatting requirements in s 12(3) of the Determination, i.e. the particulars must:

  • be reasonably prominent;
  • be legible at a distance at which the communication is intended to be read;
  • not be placed over complex pictorial or multi-coloured backgrounds; and
  • be in a text that contrasts with the background on which the text appears.

The placement of the authorisation particulars for other communications depends on the type. These are addressed in more detail below.

Audio Communications (including speech, music or other sounds but excluding radio)

Examples: phone calls (including bulk phone calls), podcasts, streamed in an app or on a website

Q. Where must the authorisation particulars be placed?

A. At the beginning of the communication, s 12(2)(a) of the Determination.

Q. Do personal phone calls containing referendum matter 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 referendum matter, who authorised the material?

A. The disclosure entity must authorise 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.

Q. Do live speeches containing referendum matter need to be authorised?

A. No. Speeches that are communicated live at a meeting do not require authorisation (section 110C(4)(g) of the Referendum Act). But any subsequent communication (including republishing online) of that speech may require an authorisation.

Q. Who is the authorising person if I read a speech with referendum 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.

Video Communications (including Facebook live (repost), Tiktok posts, social media video ads, Youtube videos)

Q. Where must the particulars be placed?

A. The authorising particulars must be announced and shown at the end of the communication, s 12(2)(b) of the Determination.

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

A. Yes. The authorisation details for films that contain referendum matter are the same as for any other video, or communication which consists of moving visual images with speech, music or other sounds (see s 12(2)(b) of the Determination).

Communications in the form of an electronic billboard, electric road sign or other similar device

Q. What authorisation particulars must be included an electronic billboard, electric road sign or other similar device?

A. The authorisation particulars for electronic billboards and other similar devices must be at the end of the communication, s 12(2)(c) of the Determination.

Any other form of communication

Q. Where do the authorisation particulars need to be placed for any other types of non-printed communications?

A. At the end of the communication or on a webpage that can be accessed by a URL that is included, either in whole or as a hyperlink.

Q. Do text messages require an authorisation?

A. Yes. If the text message contains referendum matter then the text message is required to include authorisation particulars.

Q. Do social media communications require an authorisation?

A. Depends. Social media content (e.g. communications on Facebook, Twitter, Instagram, etc.) will require an authorisation if the communication includes referendum matter that is communicated:

  • by or on behalf of a disclosure entity (e.g. a political party or Senator), or
  • in a paid advertisement on social media (including communications which all or part of the distribution or production has been paid for).

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

A. Section 12(2)(d) of the Determination requires the particulars must be notified through one or more of the following ways:

  • at the end of the communication, and/or;
  • if the notifying entity is an individual (for example a Senator or member of the House of Representative), in the ‘About Us’ or ‘Contact Us’ section (however described) that relates to the individual and that is directly linked to, or can be access by clicking a link in, the communication.

Examples

Example 1: A member of the House of Representatives or Senator posts on Twitter during a referendum period about their campaign and why electors should vote for or against the alteration of the Constitution.

Section 12(d)(iv) of the Determination allows a notifying entity who is an individual, such as a Senator or member of the House of Representatives to place their authorisation particulars in the ‘About Us’ or ‘Contact Us’ section (however described) if that section is directly linked to, or can be accessed by, clicking a link in the communications. In these circumstances, every social media post does not need to be authorised with the exception of paid referendum advertising.

Note 1:  this section does not allow entities or groups, such as registered political parties, significant third parties or associated entities to use this feature. If these entities make social media posts containing referendum matter, every single post must include the authorisation particulars.

Note 2: this section applies to text posts only. If an individual is publishing a Facebook live to remain on their page, an Instagram video or a TikTok, then this communication falls within a video communication and the authorisation particulars must be spoken and announced at the end.

Example 2: A significant third party pays a social media platform for a post that contains referendum matter to be sponsored (a paid referendum advertisement). The advertisement is in the form of a text post above an image.

To achieve the objects of the Referendum Act, every paid referendum advertisement must include the authorisation particulars at the end of the individual communication. This includes paid referendum advertisement published by a member of the House of Representatives or Senator or any other individual. The author of the content must have regard to the fact that the post can be reposted/shared, and that the post may be viewed in different formats, such as on a computer or on a mobile.

Q. Will social media content (e.g. Facebook or Twitter) containing referendum 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 to personal friends only.

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

A. Depends. If the original post contains referendum matter that required authorisation, it must be authorised by the original communicator. If you repost this original post:

  • as part of a paid referendum advertisement, you must authorise the advertisement
  • on behalf of a disclosure entity (e.g. political party or member of the House of Representatives), you must authorise the reposted communication
  • for personal purposes, you are not required to authorise your post.

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 office box?

A. The authorisation requirements for emails containing referendum matter are the same as those for other ‘non-printed’ types of communication – i.e. text messages, social media platforms etc (as discussed above).

Under the definition of ‘relevant town or city’ in section 110A of the of the Referendum Act, the name of a town or city must be included in the authorisation; a post office box is not sufficient. Please refer above for the definition of ‘relevant town or city’.

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 sufficient?

A. Authorisation particulars must be included in an email in one or more of the following ways:

  • at the end of the communication; and/or
  • on a webpage that can be access by a URL that is included, either in whole or as a hyperlink, at the end of the communication.

Q In relation to websites, is an authorisation required on every page, or is a link to a special page specifically authorising the specific communication required?

A. The authorisation for a website that contains referendum matter should appear in the footer of the website (s 12(2)(d)(iii) of the Determination).

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

A. Yes. The authorisation particulars are similar to those that apply to social media or webpages. Section 12(2)(d) of the Determination requires the authorisation particulars must be either:

  • at the end of the communication; and/or
  • on a webpage that can be accessed by a URL link, that is included at the end of the communication.

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

A. Yes. The authorisation details for mobile phone and computer applications are to be:

  • at the end of the banner;
  • on a webpage that can be accessed by a URL link, that is included at the end of the communication.

Q. Where should the authorisation appear for mobile phone applications and computer applications?

A. For a mobile phone application or a computer application, s 12(2)(d) of the Determination requires the particulars must be notified:

  • at the end of the communication; and/or
  • on a webpage that can be accessed by a URL link, that is included at the end of the communication.

Authorisation requirements for broadcast political matters and broadcasters and the role of the ACMA

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

A. The authorisation requirements for broadcasting apply to political matter, electoral matter and referendum matter (see Schedule 2 Broadcasting Services Act 1992). This includes election and referendum advertising. Accordingly, the authorisation requirements for broadcasting apply at all times and not just during election and referendum periods.

Q. What is the electronic media blackout and when does it occur?

A. Under Schedule 2 to the Broadcasting Services Act 1992, there is an election and referendum 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, groups and others are no longer able to purchase time on television and radio to broadcast electoral or referendum advertising.

The electronic media blackout provisions and other provisions relating to the broadcasting of ‘political matter’ are administered by the ACMA.

What electoral and referendum communications do not need to be authorised

Q. What communications do not require an authorisation?

A. Electoral or referendum communications do not require an authorisation where the communication:

  • is or would be a private communication by a person to another person who is known to the first person;
  • forms or would form part of the reporting of news, the presenting of current affairs or any genuine editorial content in news media;
  • is or would be by a person for the dominant purpose that is a satirical, academic, educative or artistic purpose, taking into account other relevant considerations including the dominant purpose of any other communication of matter by the person;
  • is or would be by or to a person who is a Commonwealth public official (within the meaning of the Criminal Code) in that person’s capacity as such an official;
  • is or would be a private communication to a political entity (who is not a Commonwealth public official) in relation to public policy or public administration;
  • occurs or would occur in the House of Representatives or the Senate, or is or would be to a parliamentary committee;
  • is or would be on clothing or any other item intended to be worn on the body;
  • forms or would form part of a promotional item (such as a balloon, pen, mug, tote bag or marquee, but not a sticker or fridge magnet) that only contains the name, logo or other identifying feature of the notifying entity;
  • if the matter is communicated by or on behalf of a State, a Territory or an authority of a State or Territory (referendums only)
  • is skywriting;
  • is graffiti;
  • is or would be opinion polling and research relating to voting intentions at a federal election or by-election;
  • is or would be an internal communication of a notifying entity;
  • is or would be 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);
  • is a communication communicated solely for the purposes of announcing a meeting
  • is or would be a letter or card that contains the name and address of the notifying entity;
  • is a media release that contains the name and address of the notifying entity for that media release; or
  • is an envelope that has written on it the name and address of the notifying entity for that envelope.

What if an electoral or referendum communication is not authorised

For further information about the AEC’s compliance and enforcement activites, please visit our compliance page.

To provide a tip-off or complaint to the AEC, please visit our complaints/tip-off page.

Version History

29 July 2021

To address the new Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021

21 September 2021

To address amendments to Part XXA of the Electoral Act by the Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Act 2021 to remove the requirement for the authorisation particulars for printed communications to include printer requirements.

23 February 2022

To address amendments to penalty for s 329 by the Electoral Legislation Amendment (Foreign Influences and Offences) Act 2022.

21 March 2022

To address amendments to s 321D by the Electoral Legislation Amendment (Authorisations) Act 2022 to require registered political parties and disclosure entities to use their current registered name and allow registered political parties to use a condensed name in authorisations.

27 April 2023

To address amendments to the authorisation requirements in the Referendum (Machinery Provisions) Act 1984 by the Referendum (Machinery Provisions) Amendment Act 2022. Those amendments aligned the requirements in the Referendum Act with recent changes to the Electoral Act, including by amending the definition of ‘referendum matter’, strengthening the information gathering powers and prohibiting foreign campaigners from authorising referendum matter.