The Commonwealth Electoral Act 1918 (the Act) does not regulate the content of political messages contained in electoral advertising. Rather, the intent of the Act is to ensure electors are informed about the source of political advertising and to ensure that political advertising does not mislead or deceive electors about the way in which a vote must be cast.
Further, as the authorisation details are required to include a street address, this facilitates the taking of legal action and the serving of legal documents where a person believes they have been defamed or otherwise have some legal cause of action arising from the publication of the material.
‘ELECTORAL ADVERTISEMENT’ is defined as follows:
… an advertisement, handbill, pamphlet, poster or notice that contains electoral matter, but does not include an advertisement in a newspaper announcing the holding of a meeting.
‘ELECTORAL MATTER’ is defined as matter which is intended or likely to affect voting in an election.
Further the Act states that:
… matter shall be taken to be intended or likely to affect voting in an election if it contains an express or implicit reference to, or comment on:
The ‘relevant period’ which is defined in section 322 of the Act, is the period commencing on the issue of the writ 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.
DO ELECTION ADVERTISEMENTS HAVE TO BE AUTHORISED?
YES. The Act requires all electoral advertisements to include the name and address of the person who authorised the advertisement and, except in the case of newspapers, the name and place of business of the printer at the end. Electoral advertisements must be authorised at all times, and not just during an election period.
DETAILS OF THE PERSON WHO AUTHORISED THE ADVERTISEMENT
The Act requires electoral advertisements to include the name and full street address of the person who authorised the advertisement at the end of the advertisement.
The address requirements contained in the Act prohibit the use of a post office box and require a full street address and suburb or locality at which the person can usually be contacted during the day. The address does not have to be a residential address.
This ensures that anonymity does not become a protective shield for irresponsible or defamatory statements. The inclusion of the street address details enables legal proceedings to be issued and served.
Also, it is an offence to publish electoral advertisements that take up the whole or part of each of two opposing pages of a newspaper, without including the name and of the person who authorised the electoral advertisement at the end of both pages.
HEADINGS TO ELECTORAL ADVERTISEMENTS
Electoral advertisements must contain an identifying heading stating that it is an advertisement.
The word ’ADVERTISEMENT’ is to be printed as a headline to the advertisement in letters not smaller than 10 point. It is important to note that this requirement applies at all times, not just during an election period.
ELECTORAL ADVERTISING – DIGITAL
The Act applies when a person pays for an advertisement to appear on a digital site if the advertisement is intended to affect voting in a federal.
Any paid‑for announcement on the internet designed to attract public attention, which is intended to affect voting in a federal election requires the same ‘Advertisement’ and ‘Authorised by…’ details as a print advertisement.
IS THERE A MEDIA BLACKOUT ON ELECTION ADVERTISING?
NO. The blackout period does not apply to digital or print media.
MISLEADING OR DECEPTIVE ELECTORAL ADVERTISEMENTS
Political parties and candidates, and other interested individuals also produce electoral advertising during an election campaign to assist voters in choosing their preferred candidates when casting a vote. Electoral advertising can often include how-to-vote cards, which demonstrate how voters should number their preferences against each candidate on the ballot paper so as to ensure the election of the most favoured candidate or group of candidates.
Although the Australian Electoral Commission (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. So, how-to-vote card images should not advocate optional preferential voting because, with limited exceptions, the Act clearly requires full preferential voting.
It is an offence to publish, either in print or digitally any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote. This is in force only during the relevant period in relation to an election.
The intention behind the provisions is not to regulate the content of political messages directed at influencing the choice of preferred candidates or political parties by voters but to regulate publications and broadcasts that are directed at influencing the way in which the ballot paper is actually marked.