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Australian Electoral Commission
Campaigning reminder distributed to all federally registered political parties: March 2022.
Electoral Backgrounders are published by the Australian Electoral Commission (AEC) to provide an introduction to electoral law, policy and procedures for the information and guidance of all interested parties.
To provide guidance on authorisation requirements for the communication of electoral, referendum or political matter that relates to a federal election or referendum.
The contents of this Backgrounder are a guide only. The AEC does not have the authority to approve electoral communications for publication, nor does the AEC provide legal advice on whether a particular electoral communication complies with the legislative requirements. Communications are assessed on a case-by-case basis to determine whether an authorisation is required and what form the authorisation should take. Ultimately it is for the courts to decide on 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. The AEC’s general guidance is – ‘when in doubt, authorise it’.
This Backgrounder is relevant for:
The Backgrounder focuses on the authorisation requirements for electoral communications. The authorisation requirements for referendum communications or broadcast political communications align with the authorisation requirements for electoral communications.
The authorisation requirements are established by the following legislation:
A. The objects of the authorisation requirements are to promote free and informed voting at elections by enhancing:
A. The authorisation requirements in Part XXA of the Electoral Act apply to all electoral communications made on or after 15 March 2018. This is the date that the Electoral and Other Legislation Amendment Act 2017 amended and broadened the authorisation requirements in the Electoral Act to:
On 1 January 2019, the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018, amended the authorisation requirements in Part XXA to clarify what communications will be electoral matter (addressed below in the sections What is electoral matter? and What communications do not require an authorisation?).
The Electoral Commissioner is also enabled by paragraph 321D(7)(b) of the Electoral Act to determine, by legislative instrument, requirements relating to the notifying particulars for the purposes Electoral Act, Referendum Act and certain Broadcasting Acts. On 30 June 2021, the Electoral Commissioner issued a new Determination to clarify the formatting, placement and language requirements for notifying particulars. Summary of changes between the 2018 Determination and the 2021 Determination.
On 18 February 2022 the Electoral Legislation Amendment (Authorisations) Act 2021, amended the authorisation particular requirements for political parties and disclosure entities to use their current registered name and allow registered political parties to use a condensed name in authorisations.
Political communications that are broadcast by television and radio broadcasters continue to be covered by the relevant broadcast legislation which includes authorisation requirements that align with the requirements in the Electoral Act.
A. It depends on the type of communication:
If this Backgrounder does not answer your questions, enquiries or complaints about electoral communications can be made to the relevant Commonwealth body:
A. The following communications need to be authorised:
This Backgrounder provides guidance of the authorisation requirements for electoral matters. The authorisation requirements for referendum communications and political communications align with these requirements.
A. An electoral communication is the communication of ‘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 (sections 4(1) and 4AA of the Electoral Act).
Section 4AA(1)-(5) contains further guidance to determine whether a matter is an 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:
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)):
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 largely depend on the proximity 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 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 the last slide 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:
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:
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.
A. Communication by or on behalf of a disclosure entity is electoral communication. A ‘disclosure entity’ is defined in section 321B of the Electoral Act to include:
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).
A. The notifying entity is responsible for ensuring an electoral communication has an appropriate authorisation (section 321D(5)).
A. A ‘notifying entity’ is defined in sections 321D(1) and (2) of the Electoral Act to be:
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.
The particulars that are required to be notified depend on the form of the communication as well as on whether it is authorised by a ‘disclosure 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 communications above the disclosure threshold.
The content of the authorisation particulars will depend on the type of communication and who is responsible for the communication. The authorisation particulars that are required to be included in each type of communication that contains electoral matters are set out in the table in section 321D(5) of the Electoral Act:
| Item | If… | the following particulars are required… |
|---|---|---|
1 |
the communication is a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card authorised by a disclosure entity that is not a natural person |
For political parties:
For other disclosure entities:
|
2 |
the communication is any other communication authorised by a disclosure entity that is not a natural person |
For political parties:
For other disclosure entities:
|
3 |
the communication is a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card authorised by a disclosure entity who is a natural person |
|
4 |
the communication is any other communication authorised by a disclosure entity who is a natural person |
|
5 |
the communication is a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card authorised by an entity that is not a disclosure entity or a natural person |
|
6 |
the communication is any other communication authorised by an entity that is not a disclosure entity or a natural person |
|
7 |
the communication is a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card authorised by a natural person who is not a disclosure entity |
|
8 |
the communication is any other communication authorised by a natural person who is not a disclosure entity |
|
* Under s 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:
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.
A. The authorisation particulars for printed communications must be printed at the end of the communication (s 11(2)(b) of the 2021 Determination).
A. The authorisation particulars must meet all of the formatting requirements in s 11(3) of the Determination, i.e. the particulars must:
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.
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 of its own accord and can therefore cause the printed communication to be in breach of the authorisations requirements.
A. The language requirements for printed communications are set out in s 11(4) of the Determination as follows:
These language requirements are similar for printed communications (s 11(4) of the Determination) and communications non-printed communications (s 12(4) of the Determination).
A. The relevant town or city will depend on circumstances of the individual or entity authorising the communication:
A PO Box address is not sufficient for the street address of the person or entity.
A. The table in section 321D(5) of the Electoral Act provides the particulars 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 must be at the end of the printed communication (s 11(2)(b) of the Determination).
The printed particulars must meet all of the following formatting requirements (see s11(3) of the Determination), must be:
A. A how-to-vote card is a form of printed communication that requires the inclusion of authorisation particulars. The authorisation requirements for how-to-vote cards are the same as for a sticker, fridge magnet, leaflet, flyer, pamphlet, notice or a poster.
A. No. The authorisation particulars for electoral matter published in newspapers and journals aligns with the authorisation particulars for other types of printed communications.
A. The table in section 321D(5) of the Electoral Act (items 2, 4, 6 and 8) provides the particulars required if the communication of the ‘electoral matter’ is by any form other than a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card. Primarily the authorisation must include:
A. No. 2021 amendments to the Electoral Act removed the requirement for the authorisation of printed electoral matter to include the printer details.
A. The authorisation particulars must meet all of the formatting requirements in s 12(3) of the Determination, i.e. the particulars must:
A. The language requirements for printed communications are the same as for printed communications. Section 12(4) of the Determination requires as follows:
A. Phone calls include communication by VoIP or Skype and any communications generated by computerised auto-diallers. For electoral communications by phone, section 12(2)(a) of the Determination requires the authorisation particulars must be announced at the beginning of the communication. The content of particulars are the same as for social media and must include:
The relevant town or city will depend on circumstances of the individual or entity authorising the communication:
The language requirements for a phone call are the same as those for other forms of communication. Section 12(4) of the Determination requires:
A. The authorising particulars must be announced at the beginning of the communication, s 12(2)(a) of the Determination.
A. Communications for personal purposes will not require an authorisation.
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.
A. Speeches that are communicated live at a meeting do not require authorisation (section 321D(4) of the Electoral Act). But any subsequent communication of that speech may require an authorisation.
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.
A. Yes. The authorisation details are the same as for phone calls or other communications that are made in the form of speech, music or other sounds and no other form. The particulars must be announced at the beginning of the communication.
They must also meet the following language requirements:
A. For streamed music, the particulars must be announced at the beginning of the communication, following the language requirements set out above.
A. Yes. If a ‘video sharing’ website, such as YouTube, contains electoral matter, then the authorisation requirements for videos will apply (see s12(2)(b) of the Determination).
The authorisation requirements for streamed radio would be the same as those required for any other communication which is audio based (i.e. phone calls) (see s 12(2)(a) of the Determination), and the particulars need to be announced at the beginning of the communication. They would also need to meet same language requirements (see above).
A. For communications by video-sharing, the authorisation particulars must be announced and shown at the end of the communication, and meet the same language and formatting requirements as for all other forms of communication.
A. Yes. The authorisation details for films that contain electoral matter are the same as for any other video, or communication which consists of moving visual images with speech, must or other sounds (see s12(2)(b) of the Determination).
A. For communications on a video-sharing or cinema medium, the required particulars should be communicated in the form of a spoken announcement and shown in the form of images or words at the end of the communication and meeting the same language requirements as for all other forms of communication (s12(2)(b) and s(4) of the Determination).
A. The authorisation particulars for electronic billboards and other similar devices must be at the end of the communication. These written particulars must meet the same formatting requirements as for other forms of non-printed communication.
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 section 321D(5) of the Electoral Act).
A text message comes under ‘other forms of communication’ or ‘non-printed’ forms of communication (see s12 of the Determination).
A. For text messages that require an authorisation, the authorisation particulars must include:
The relevant town or city will depend on circumstances of the individual or entity authorising the communication:
A. If the communication is a text message, s 12(2)(d) of the Determination requires the particulars must be notified in one or more of the following ways:
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:
A. The table in section 321D(5) of the Electoral Act (items 2, 4, 6 and 8) set out the authorisation particulars which must include:
The relevant town or city will depend on circumstances of the individual or entity authorising the communication:
A. If the communication is by social media, section 12(2)(d) of the Determination requires the particulars must be notified through one or more of the following ways:
A. A social media page that is established by or on behalf of a disclosure entity must be authorised.
If a social media post is made on a social media page in the name of an individual, it is sufficient for the communication to include a link to the bio (i.e. the ‘About Us’ or ‘Contact Us’ section) in the communication, as long as the ‘bio section’ contains the necessary authorisation particulars, meeting the required formatting and language requirements as outlined above for ‘non printed’ forms of communication.
If a social media account is not held in the name of an individual, then the communication will still need to include the necessary authorisation particulars. Section 12(2)(d) of the Determination requires the particulars can be notified in one of the following ways:
A. No. Social media content will not require an authorisation if it is communicated for personal purposes, for instance to personal friends only.
A. Depends. If the original post contains electoral matter that required authorisation, it must be authorised by the original communicator. If you report this original post:
The service provider used to post both messages is not required to authorise the original post or your repost, as the service provider did not make the decision to communicate the content.
A. A video for social media with electoral matter that is likely to be shared must be authorised. Section 12(2)(b) of the Determination requires the authorisation particulars for a video must be announced and shown at the end of the video.
The particulars must meet the following formatting requirements in s 12(3) of the Determination (the same as for other ‘non-printed’ forms of communication), the particulars must:
Both the announcement and written particulars in the video must also meet the language requirements s 12(4) of the Determination:
The authorisation must be shown at the end of the communication for the embedded video (s 12(2)(b) of the Determination).
If the video is reposted or shared, by or on behalf of a disclosure entity (e.g. a candidate or political party), or as part of a paid electoral advertisement, then the repost or the account to which the video is reposted must also be authorised.
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 below). Please refer to the 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 as post-boxes are not sufficient. Please refer to the earlier answer regarding the authorisation requirements for text messages for the definition of ‘relevant town or city’.
A. Yes. As long as the notifying particulars are contained in the email, it is sufficient to contain the authorisation in the signature block.
A. Authorisation particulars must be announced in an email in one or more of the following ways:
The authorisation particulars will need to meet the same language and formatting requirements as for other forms of non-printed communication (as discussed above).
A. The authorisation particulars for a website that contains electoral communications are contained in the table in section 321D(5) of the Electoral Act (items 2, 4, 6 and 8) and which must include:
The relevant town or city will depend on circumstances of the individual or entity authorising the communication:
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).
These particulars must still meet all of the formatting requirements in s 12(3) of the Determination, they must:
The authorisation particulars must also meet the following language requirements:
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. This distinction does not change the formatting and language requirements as described directly above, but it may alter the substance of the particulars (i.e. the name and address requirements). Please see the question above ‘what are the authorisation particulars’.
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:
These particulars must also meet the same language requirements as those for other forms of communications.
A. Yes. The authorisation details for mobile phone and computer applications are the same as those for digital banner advertisements.
A. For a mobile phone application or a computer application, s 12(2)(d) of the Determination requires the particulars must be notified:
These particulars must also meet the same language requirements as those for other forms of communications.
A similar authorisation regime applies for the communication of 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.
The authorisation requirements for a referendum matter are set out in Part IX of the Referendum (Machinery Provisions) Act 1984:
A. The authorisation requirements for broadcasting apply to political matter and election matter (see Schedule 2 Broadcasting Services Act 1992). This includes electoral matter advertising. Accordingly, the authorisation requirements for broadcasting apply at all times and not just during election periods.
A. No. Although the candidate and political party have been named in the television advertisement, the advertisement must have an authorisation at the end of the advertisement, in spoken word and in images or text on-screen (Schedule 2, clause 4(2) of the Broadcasting Services Act 1992 and section 15(2) of the Determination). The authorisation particulars at the end of the advertisement must include the name of the person who approved the advertisement and the town or city in which the person lives. If the electoral communication is authorised by an entity that is not a natural person (e.g. a political party), the authorisation must also include the entity (party) name. Registered political parties may use their registered party name or condensed party name, as applicable.
A. The authorisation particulars will depend on the person or entity who is responsible for the political communication. Particulars that are required by different entities to be notified are at section 79A(6) of the Australian Broadcasting Corporation Act 1983, clause 2 of Schedule 2 to the Broadcasting Services Act 1992, and at section 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.
The authorisation requirements under the Broadcasting Services Act 1992 and Broadcasting Corporation Act 1983 mirror the Electoral Act and registered political parties may use their registered party name or a condensed name when authorising an electoral communication.
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:
For example: the registered name ‘Quokka Party 5 of Australia Inc.—NSW’ may be notified as ‘Quokka Party’
Disclosure entities which are not registered political parties must use the name which appears on the Transparency Register.
Disclosure entities which are not political parties and do not appear on the Transparency Register, but of which have given a return under Part XX of the Electoral Act in relation to the entity – must use the name included in the most recent return given in relation to the entity.
In any other case not covered above, the entity must simply furnish the authorisation particulars with the name of the entity alongside the particulars required in the table in clause 2 schedule 2 of the Broadcasting Services Act 1992, s 79A(6) of the Australian Broadcasting Corporations Act 1983, and 70A(6) of the Special Broadcasting Service Act 1991.
A. Where an authorisation should appear on the broadcast of a political matter depends on the type of communication. Section 79A(2) of the Australian Broadcasting Corporation Act 1983, clause 4(2) of Schedule 2 to the Broadcasting Services Act 1992, and section 70A(2) of the Special Broadcasting Service Act 1991 enable the Electoral Commissioner’s Determination to specify the placement of the authorisation. Section 15(2) of the Determination requires:
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 particulars must be in the same language(s) of the communications ensures that members of the target audience for the communication can understand the authorisation information.
A. Under Schedule 2 to the Broadcasting Services Act 1992, 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.
A. Any inquiries or complaints about the obligations placed on broadcasters can be directed to the Australian Communications and Media Authority (ACMA).
A. No. A private communication by a person to another person who is known to the first person does not require an authorisation.
A. Electoral communications do not require an authorisation (under sections 4AA(5), 321D(3) or 321D(4) of the Electoral Act or section 7 or 8 of the Determination) where the communication:
A. No. The AEC has no role in regulating the political content of electoral advertising. There is a limited an offence in section 329(1) of the Electoral Act for electoral advertising or communications that are likely to 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.
A. Section 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 during an election period 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 communication broadcast on radio, television, the internet or by telephone. Section 329(5) provides that in a prosecution of a person for an section 329(1) offence, 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.
Several court cases have clarified the limited scope of section 329. Reflecting on the High Court decision in Evans v Crichton-Browne (1981) 147 CLR 169, the Federal Court held in Peebles v Honourable Tony Burke [2010] FCA 838:
“It is clear from reading the entire reasons for judgment of the High Court in Crichton-Browne that the prohibition in s 329 concerns misleading or deceptive conduct which might affect the process of casting a vote rather than the formation of the political judgment about how the vote will be cast. That is, the section concerns conduct which might, for example, lead a voter either to fail to record a valid vote or to record a valid vote but not for the candidate or candidates of the voter's choice. An obvious example would be information which told a voter how to go about completing the ballot paper which was wrong and would result in the casting of an informal vote.”
In Garbett v Liu [2019] FCAFC 241, the Federal Court considered purple and white signage (similar to the colours used by the AEC) placed adjacent to AEC signage on polling day, and written in Mandarin that translated as “Correct voting method”, “The right way to vote” or “The correct way to vote”. The Court considered:
“In s 329(1) the phrase “likely to mislead or deceive an elector” means a real chance of misleading or deceiving any elector, even one who is unintelligent, or gullible, or naïve. The phrase “in relation to the casting of a vote” is wide enough to encompass a matter or thing that contains a representation that for a valid vote to be cast an elector must vote in favour of a particular candidate or in a particular order of candidates.”
In Garbett v Liu the Court held purple and white signs were misleading or deceptive when:
A. Unlike section 321D of the Electoral Act which applies at all times, section 329(1) only applies to communications printed, published or distributed 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.
A. The maximum penalty for a contravention of section 329(1) is a fine not exceeding 100 penalty units or imprisonment for a period not exceeding three years, or both, for a person; or a fine not exceeding 500 penalty units for a body corporate.
At 1 July 2020, a penalty unit was $222, so contravention of s 329(1) attracts a penalty of up to $22,200 for an individual and up to $111,000 for a body corporate.
A. Yes, the penalty for a breach of the authorisation requirements by:
A. Enquiries or complaints about unauthorised electoral communications can be made to:
Complaints to the AEC should include 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, or for online communications a link to the relevant web page and an image indicating the potential infringing communication (an image is required given the transient nature of online communications, quite often by the time the AEC investigates an online complaint the communication has since been removed or changed).
If an original copy of the communication cannot be obtained, the online complaints form enables a copy of the entire document to be attached and forwarded to the AEC. But 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 the complaints actually are received through the AEC’s firewall.
Information relevant to a complaint, allegation or investigation that is, or could become, subject to proceedings under Parts XXA or XXI (Electoral offences), will not be provided to any person not directly involved with the matter. In all cases after a complaint has been received, 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.
A. The Electoral Commission and candidates in an election are able to seek an injunction under section 383 of the Electoral Act against any conduct that is or would contravene the Electoral Act. A court ordered injunction can prohibit certain conduct or to require certain conduct to be performed.
The following is a guide as to courses of action that the AEC will take in response to an apparent or alleged breach of the Electoral Act. 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 a communication with ‘electoral matter’ does not include the required authorisation particulars, the AEC will generally write to the relevant person to request that the communication is withdrawn until such time as the communication is properly authorised to comply with the law. If there is continued non-compliance or a more serious breach of the Electoral Act, the AEC may seek an injunction or apply to the Courts to impose a civil penalty.
Provisions relating to the actions of broadcasters communicating ‘political matter’ are administered by ACMA.
2018 Determination Requirements |
2021 Determination Requirements |
||
|---|---|---|---|
Item |
If… |
The particulars must be notified… |
If ‘printed material’ the particulars must be notified… |
1 |
printed material |
However, item 1 of the table in subsection (1) (the above) 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:
|
Where or when the particulars must be notified
Formatting and placement of particulars
Language requirements
|
Item |
If… |
The particulars must be notified…. |
If Communication other than printed material, the particulars must be notified…. |
|---|---|---|---|
2 |
telephony |
at the beginning of the communication. |
Where or when the particulars must be notified
Formatting and placement of particulars
Language requirements
|
3 |
a text message |
|
|
4 |
by social media |
|
|
5 |
search advertising |
|
|
6 |
streamed music |
by being announced at the end of the communication in the language used for the rest of the communication. |
|
7 |
digital banner advertisement |
|
|
8 |
A mobile phone application or a computer application |
|
|
9 |
Video-sharing |
by being announced and shown at the end of the communication in the language used for the rest of communication. |
|
10 |
Cinema |
by being announced and shown at the end of the communication in the language used for the rest of the communication. |
The AEC has available a number of publications for people interested in the electoral process including:
| Version | Purpose |
|---|---|
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. |
The AEC acknowledges the Traditional Owners of country throughout Australia and recognises their continuing connection to land, waters, culture and community. We pay our respects to Elders past, present and emerging.