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What you need to know: Federal election and political matter advertising

How to avoid misleading or deceptive electoral advertisements and other communications 

Authorisation

The authorisation requirements in Part XXA of the Electoral Act apply to:

  • electoral communications at all times during the year, not just communications made during the election period leading up to polling day; and
  • cover all forms of communications including printed material, social media, voice calls (including robocalls) and text messaging (for example, bulk text messaging).


What communications require an authorisation?

The following communications need to be authorised:

  • electoral communications;
  • referendum communications; and
  • political communications that are broadcast.


What is an electoral communication?

An electoral communication is the communication of ‘electoral matter’:

  • in the form of ‘paid for’ advertisements, including where all or only part of the distribution or production of the advertisement was ‘paid for’;
  • in the form of promotional items, such as stickers, fridge magnets, leaflets, flyers, pamphlets, notices, posters and how-to-vote cards; or
  • by, or on behalf of, a disclosure entity, that is intended to affect voting in a federal election.


What is ‘electoral matter’?

‘Electoral matter’ is matter that is communicated, or intended to be communicated, for the dominant purpose of influencing the way electors vote in an election of a member of the House of Representatives or of Senators for a State or Territory.

For example, unless the contrary is proved, the dominant purpose of a communication is presumed to be electoral matter 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:

  • the accessibility of communicated matter – where a matter is communicated publicly, whether universally to the public or a section of the public, it is more likely to be electoral matter;
  • the source of communicated matter – where a matter is communicated publicly by a political entity or political campaigner, it is more likely to be electoral matter;
  • the content of the communication – where a matter contains an express or implicit comment on one of the categories mentioned in subsection 4AA(1), it is more likely to be electoral matter;
  • the intended audience of the communication – where the intended audience of a communication is electors, it is more likely to be electoral matter;
  • the audience’s consent – where a recipient or intended recipient of a communication has not requested or otherwise invited the communication, that is, it is unsolicited, it is more likely to be electoral matter.

Who or what is a ‘disclosure entity’?

Communication by or on behalf of a disclosure entity is electoral communication. A ‘disclosure entity’ is defined as:

  • a registered political party;
  • a political campaigner;
  • a third party;
  • an associated entity;
  • current members of Parliament;
  • candidates; 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.

 

Where must the authorisation particulars appear in the written communication?

The authorisation particulars for all printed material 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.

 

Do social media communications require an authorisation?

Yes. Social media content (e.g. communications on Facebook, Twitter, Instagram, etc.) will require an authorisation if the communication includes ‘electoral matter’ in a paid 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.   


What authorisation particulars must be included in a social media communication?

The authorisation particulars must include:

  • where the person who authorised the communication is an individual, the name of the person and the relevant town or city of the person;
  • 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.

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 entity is located; or
  • otherwise:
    • for an individual, the name of the town or city in which the person lives; or
    • for an entity, the name of the town or city of the individual who gives effect to the authorisation lives.


Where must the authorisation particulars appear on social media?

If the communication is communicated by social media, the particulars must be notified:

  • at the end of the communication; or
  • if the particulars are too long to be included in the communication,:
    • in a website accessible by a URL included in the communication; or
    • in a photo included in the communication


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

Yes.  The authorisation details are the same as for social media.  The term ‘digital banner advertisement’ includes static or dynamic banners on websites accessed through internet browsers, or videos that stream when banner advertisements are hovered.


Where should the authorisation appear in a digital banner advertisement?
 

For digital banner advertisements, the particulars must be notified:

  • at the end of the banner; or
  • 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.


Misleading or deceptive electoral advertisement and other communications
 

Does the Electoral Act require truth in electoral advertising?

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.


What does section 329 of the Electoral Act cover?

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.


Electronic media ‘blackout’

Under the Broadcasting Services Act, which is administered by the Australian Communications and Media Authority, election advertising in the electronic media is subject to a ‘blackout’ from midnight on 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.

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