Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ELECTORAL AND OTHER LEGISLATION AMENDMENT BILL 2017
EXPLANATORY MEMORANDUM
(Circulated by authority of the Special Minister of State, Senator the Hon Scott Ryan)
ELECTORAL AND OTHER LEGISLATION AMENDMENT BILL 2017
GENERAL OUTLINE
1. Schedule 1 of the Electoral and Other Legislation Amendment Bill 2017
(the Bill) strengthens Australian democracy by requiring those responsible for
political, electoral and referendum communication to identify themselves, irrespective
of the communication channel. It streamlines the old authorisation requirements to
make them clearer, more consistent and easier to navigate without unnecessarily
detracting from communication with voters.
2. Schedule 2 of the Bill complements the transparency and accountability
measures in the Bill by ensuring that making false representations in relation to a
Commonwealth entity or service is appropriately criminalised.
3. On 9 December 2016, the Joint Standing Committee on Electoral Matters
(JSCEM) tabled a report entitled The 2016 Federal Election: Interim Report on the
authorisation of voter communication. The Bill implements the Government response
to the recommendations of the JSCEM Report.
4. The Bill amends:
the Commonwealth Electoral Act 1918
the Referendum (Machinery Provisions) Act 1984
the Australian Broadcasting Corporation Act 1983
the Broadcasting Services Act 1992
the Parliamentary Proceedings Broadcasting Act 1946
the Special Broadcasting Service Act 1991
the Criminal Code Act 1995 (the Criminal Code).
5. In summary, the Bill:
applies the electoral authorisation requirements to modern communication
channels
requires all paid electoral advertising (which includes distribution or
production) to be authorised, no matter the source
makes the information provided in authorisations more useful to voters by
requiring those subject to the Commonwealth electoral funding and
finance disclosure regime (disclosure entities) to include this information
in their political communications
ensures the obligation to authorise electoral and referendum matter
primarily rests with those responsible for the decision to communicate it
replaces the current criminal non-compliance regime with a civil penalty
regime to be administered by the Australian Electoral Commission
harmonises authorisation requirements across broadcasting, electoral, and
referendum legislation, while retaining current requirements in relation to
specified printed materials
2
criminalises conduct amounting to a person falsely representing
themselves to be, or to be acting on behalf of, or with the authority of, a
Commonwealth entity or service.
6. The Bill's authorisation regime exempts the need to authorise:
clothing or any other item intended to be worn by a person
the reporting of news, presentation of current affairs or editorial content in
news media
communication solely for genuine satirical, academic or artistic purposes,
or solely for the purpose of announcing a meeting
opinion polling and research relating to voting intentions
communication for personal purposes
communication intended to remain within a disclosure entity
real-time communications, where the speaker and any disclosure entity on
whose behalf the speaker is communicating, are, or could, reasonably be
identified.
7. A similar authorisation regime is introduced for referendums, with some
modifications to reflect the different nature of such issue-based electoral events, based
on the entities involved and the types of financial disclosure for referendums. Like
with elections, all paid advertising in referendums is covered by the Bill's
authorisation regime, as are registered political parties and their associated entities.
Unlike elections, recent candidates, Senate groups and donors are not specifically
covered. However, persons and entities spending money on campaigning or
communicating relating to the respective referendum matter in excess of the indexed
financial disclosure threshold will be covered by the authorisation requirements.
The relevant period for expenditure will be the twelve months prior to the issue of the
writ for a referendum, rather than a financial year.
8. Schedule 2 amends the Criminal Code to criminalise conduct amounting to a
person falsely representing themselves to be, or to be acting on behalf of, or with the
authority of, a Commonwealth body.
9. Schedule 2 introduces a primary offence where the person is reckless as to
whether their conduct will result in, or is reasonably capable of resulting in, a false
representation. These amendments also create a new aggravated offence where a
person engages in such conduct with the intent to obtain a gain, cause a loss, or
influence the exercise of a public duty. Schedule 2 seeks to ensure that making false
representations in relation to a Commonwealth body is appropriately criminalised.
3
Financial impact statement
10. Schedule 1 of the Bill would have the following financial impact:
2016-17 2017-18 2018-19 2019-20 2020-21
0.0 5.8 0.9 0.9 0.9
11. Any impact the Bill may have on Government revenue, such as through
recovery of civil penalties, is not able to be quantified at this time.
Statement of compatibility with human rights
12. A Statement of Compatibility with Human Rights has been completed in
relation to the amendments in this Bill and assesses that the amendments are
compatible with Australia's human rights obligations.
4
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Electoral and Other Legislation Amendment Bill 2017
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
1. The Bill promotes free and informed voting at elections and referendums by
allowing electors to know who is communicating to them. The Bill strengthens
Australian democracy by extending current authorisation requirements and
harmonising existing requirements across communication mediums. It also protects
Australian Government entities and services from certain types of misrepresentations
and false statements, safeguarding the proper functioning of Government.
2. Amendments to the Commonwealth Electoral Act 1918 (the Electoral Act)
provided for in Schedule 1 of the Bill require all paid advertising and some types of
printed communication containing electoral matter to contain particulars identifying
the authoriser. Additionally, entities with financial disclosure obligations under
Part XX of the Electoral Act will be required to:
identify themselves in the required particulars (currently, only political
parties in broadcast media are required to do so)
include required particulars in their electoral communications, with certain
exceptions.
3. Political parties and their associated entities, candidates in elections, and
Senate groups will be required to identify themselves in all electoral
communications. Other entities with annual political expenditure over the indexed
disclosure threshold (currently, $13,200) and donors over the disclosure threshold
will also be required to include required particulars identifying themselves.
4. Schedule 1 of the Bill introduces a civil penalty regime to replace the existing
criminal penalty that has operated under the Electoral Act. The Australian Electoral
Commission will enforce the requirements using additional information-gathering
and broader injunction powers. The civil penalties are commensurate with penalties
payable under similar regulatory regimes.
5. Schedule 1 of the Bill preserves the ability to communicate anonymously for
satirical, academic or artistic purposes. The news media will continue to be able to
protect the identity of their sources, staff and collaborators, and opinion polling will
be unaffected. With respect to disclosure entities, which could be individuals or
organisations, the Bill explicitly exempts personal and internal communications.
5
6. Corresponding amendments are provided for in the Broadcasting Services Act
1992, the Australian Broadcasting Corporation Act 1983 and the Special
Broadcasting Service Act 1991 to provide consistency between broadcast and non-
broadcast communications. Consequential amendments are provided for in the
Parliamentary Proceedings Broadcasting Act 1946 to extend the existing exemption
from the authorisation requirements to cover the amendments provided for in tis Bill.
7. A similar authorisation regime is introduced for referendums, through
amendments to the Referendum (Machinery Provisions) Act 1984 with some
modifications to reflect the different nature of such issue-based electoral events and
the lack of a financial disclosure regime for referendums. Like with elections, all paid
advertising in referendums is covered by the Bill's authorisation regime, as are
registered political parties and their associated entities. Unlike with elections, recent
candidates, Senate Groups and donors will not be subject to authorisation
requirements. However, entities spending money in excess of the indexed financial
disclosure threshold on campaigning or communicating relating to the respective
referendum matter will, like in elections, be covered by authorisation requirements.
However, the relevant period will be the twelve months prior to the issue of the writ
for a referendum, rather than a financial year.
8. Schedule 2 of the Bill amends the Criminal Code Act 1995 (the Criminal
Code) to introduce an offence which criminalises conduct amounting to a person
falsely representing themselves to be, or to be acting on behalf of, or with the
authority of, a Commonwealth body. It also introduces an aggravated offence, where
a person makes such a false representation with the intention of obtaining a gain,
causing a loss, or influencing the exercise of a public duty or function.
9. The purpose of Schedule 2 of the Bill is to clarify the position under the
Criminal Code to protect the public from misrepresentation and false statements,
thereby ensuring the public has confidence in the legitimacy of communications
emanating from Commonwealth bodies and safeguarding the proper functioning of
Government.
Human rights implications
10. This Bill engages the following rights as provided for in the International
Covenant on Civil and Political Rights (ICCPR):
the right to take part in public affairs and elections, as contained in
article 25
the right to freedom of opinion and expression, as contained in article 19
the prohibition on interference with privacy and attacks on reputation, as
contained in article 17.
11. The right to freedom of expression includes the right to receive and impart
information and ideas of all kinds using any media. Article 19(3) explicitly states that
the exercise of this right carries with it special duties and responsibilities.
Accordingly, it may be subject to certain restrictions provided that the restrictions are
provided by law and are for respect of the rights and reputation of others.
6
12. The authorising requirements amount to restrictions on anonymous political
speech in limited circumstances, and, in doing so, engage the rights specified above.
The restrictions are objective, legitimate and proportional because they:
are provided for by law
serve a genuine public interest by protecting the free, fair and informed
voting, which is essential to Australia's system of representative
government
support the right to protection against unlawful attacks on reputation
apply to an objectively defined group of entities who freely choose to play
a prominent role in political debate.
13. There is a strong public interest in ensuring that voters are aware of who is
communicating to them without adversely impacting public debate. These
authorisation requirements facilitate transparency and public confidence in
Australia's electoral processes. They allow voters to assess the credibility of the
information they rely on when forming their political judgment and selecting their
representatives in the Parliament.
14. Ultimately, this Bill facilitates free and informed voting at elections, an object
which is essential to Australia's system of representative democracy. The strong
public interest in achieving these objectives outweighs the rights to privacy of those
covered by the authorisation regime who might wish to communicate anonymously.
15. Furthermore, the Bill's restrictions on anonymous electoral communications
supports the right of participants in public debate to protection against unlawful
attacks on reputation by providing key information necessary to commence
appropriate civil action under Australia's defamation laws.
16. The Bill limits the restriction on anonymous speech to circumstances strictly
necessary to protect the public interest by providing explicit exemptions for:
the reporting of news, current affairs and editorial content in news media
communication solely for genuine satirical, academic or artistic purposes
personal or internal communications of disclosure entities
opinion polls and research relating to voting intentions.
17. The Bill's civil penalty provisions do not constitute a criminal penalty for the
purposes of human rights law as they are not classified as criminal under Australian
law and are restricted to people in a specific regulatory context.
18. The new offences in section 150.1 of the Criminal Code, as proposed in
Schedule 2 of the Bill, engage the right to freedom of expression under article 19(2)
of the ICCPR.
19. The right to freedom of expression includes the right to receive and impart
information and ideas of all kinds in writing or in print and using any media.
Article 19(3) explicitly states that this right may be subject to certain restrictions
provided that the restrictions are provided by law and are for the protection of
(among other things) public order or national security.
7
20. The new offences engage the right to freedom of expression as they prohibit
false representations that a person is a Commonwealth body, or acts on behalf of, or
with the authority of, a Commonwealth body. This will prevent an individual from
imparting information and ideas that amount to such a false representation.
21. These restrictions on a person's freedom of expression are justified. The
offences are provided for by law in new section 150.1 of the Criminal Code, and
impose penalties which mirror offences that criminalise the impersonation of
Commonwealth public officials.
22. The offences are necessary for protecting public order. Public order
encompasses the rules which ensure the peaceful and effective functioning of society,
or the set of fundamental principles on which society is founded. Representations
falsely purported to be from, or on behalf of, a Commonwealth body could
undermine public confidence in the integrity and authority of the Australian
Government. Commonwealth departments, companies, services and programmes
cannot function effectively unless recipients trust the legitimacy and lawfulness of
representations emanating from them.
23. The offences are a reasonable and proportionate way of achieving the aim of
protecting public order. In order to commit an offence under section 150.1, a person
must be reckless as to whether their conduct will result in, or is reasonably capable of
resulting in, the relevant representation, and whether they, in fact, are a
Commonwealth body, or act on behalf of, or with the authority of, a Commonwealth
body. Negligent or accidental creation of a false representation will not be sufficient
to establish the fault elements of these offences.
24. Further, the offences limit only a person's ability to make representations that
falsely represent that person to be, or be acting on behalf of, or with the authority of,
a Commonwealth body. They do not affect genuine representations made on behalf
of a Commonwealth body, or that are made with the authority of the body. They also
do not affect comment or criticism about a Commonwealth body, provided this is
done without falsely representing that the comment or criticism is made by or on
behalf of a Commonwealth body. Further, the offences will not affect representations
made solely for genuine satirical, academic or artistic purposes.
Conclusion
25. The Bill is compatible with human rights because to the extent that it may
limit human rights, those limitations are reasonable, necessary and proportionate.
8
ELECTORAL AND OTHER LEGISLATION AMENDMENT BILL 2017
NOTES ON CLAUSES
Glossary
1. The following abbreviations and acronyms are used throughout this
explanatory memorandum:
Abbreviation Definition
the ABC Act Australian Broadcasting Corporation Act 1983
the ACMA the Australian Communications and Media
Authority
the Act Electoral and Other Legislation Amendment
Act 2017
the Criminal Code Criminal Code Act 1995
the ABC the Australian Broadcasting Corporation
the Broadcasting Services Act Broadcasting Services Act 1992
the Electoral Act Commonwealth Electoral Act 1918
the Legislation Act Legislation Act 2003
the Referendum Act Referendum (Machinery Provisions) Act 1984
the Regulatory Powers Act Regulatory Powers (Standard Provisions)
Act 2014
the SBS Act Special Broadcasting Service Act 1991
the SBS the Special Broadcasting Service Corporation
Clause 1 - Short title
2. This clause specifies the short title of the Bill, when enacted, as the Electoral
and Other Legislation Amendment Act 2017 (the Act).
Clause 2 - Commencement
3. This clause sets out the commencement provisions for the Act, in accordance
with the table in subclause 2(1) (the commencement table).
4. Item 1 of the commencement table provides that sections 1 to 3 of the Act and
anything in the Act not elsewhere covered commence the day after the Act receives
the Royal Assent.
5. Item 2 of the commencement table provides that Schedule 1 (Authorising
electoral, referendum and political matter) commences the day after the end of the
period of 6 months beginning on the day the Act receives the Royal Assent.
6. Item 3 of the commencement table provides that Schedule 2 (Impersonating a
Commonwealth body) commence the day after the Act receives the Royal Assent.
9
7. A note is included under the commencement table to clarify that it relates only
to the provisions of the Act as originally enacted, and will not be amended to deal
with later amendments of the Act.
8. Subclause 2(1) provides that any information in column 3 of the
commencement table is not part of the Act. Information may be inserted in column 3,
or information in it may be edited, in any published version of the Act.
Clause 3 - Schedules
9. This clause is an enabling provision for the Schedules. It provides that
legislation that is specified in a Schedule to the Act is amended or repealed as set out
in the applicable items in the Schedule concerned, any other item in a Schedule to the
Act has effect according to its terms.
Schedule 1 - Authorising electoral, referendum and political matter
Part 1 - Amendments of electoral legislation
Commonwealth Electoral Act 1918
Item 1 - Subsection 4(1)
10. This item inserts definitions of "carriage service provider" and "civil penalty
provision" into subsection 4(1) of the Commonwealth Electoral Act 1918 (the
Electoral Act).
11. "Carriage service provider" has the meaning given by section 87 of the
Telecommunications Act 1997. This definition will capture telecommunication and
internet service providers who provide listed carriage services (see item 3).
12. "Civil penalty provision" has the meaning given by the Regulatory Powers
(Standard Provisions) Act 2014 (the Regulatory Powers Act).
Item 2 - Subsection 4(1) (at the end of the definition of electoral matter)
13. This item inserts a note at the end of the definition of "electoral matter" in
subsection 4(1) to refer readers to subsection 4(9). "Electoral matter" is defined as
matter which is intended or likely to affect voting in an election. Subsection 4(9)
specifies particular matters that are taken to be intended or likely to affect voting in an
election (see item 4).
Item 3 - Subsection 4(1)
14. This item inserts definitions of "listed carriage service" and "Regulatory
Powers Act" into subsection 4(1).
15. "Listed carriage service" has the meaning given by section 16 of the
Telecommunications Act 1997. This will capture communications between points
(where one of those points is in Australia) by means of guided and/or unguided
electromagnetic energy. This includes communications transmitted by physical
mediums (such as wires and cables), and by radiocommunication.
10
16. "Regulatory Powers Act" means the Regulatory Powers (Standard Provisions)
Act 2014.
Item 4 - Subsection 4(9)
17. This item repeals and substitutes subsection 4(9). Subsection 4(9) specifies
types of matter that are taken to be intended or likely to affect voting in an election,
without limiting the definition of "electoral matter" in subsection 4(1).
18. New subsection 4(9) provides a list of specific matter that is taken to be matter
intended or likely to affect voting in an election, referred to as "electoral matter",
without limiting the generality of that definition. This deeming provision has been
narrowed in scope given the significant expansion of the types of entities and
situations in which authorisation requirements apply. For example, references to
matter containing ' ... express or implicit reference to, or comment on, any
Commonwealth, state or territory Government, Opposition, previous Government,
previous Opposition, member of the Parliament or legislature or former member of
the Parliament or legislature ... ' have been removed from this list. As indicated in the
note, this does not mean that these types of matter are not electoral matter. Rather,
their removal from this list means that each communication containing such
comments or references needs to assessed, on a case-by-case basis, as to whether it is
intended or likely to affect voting in an election rather than automatically deemed to
be.
19. The operation of the remaining paragraphs in new subsection 4(9), which
include matter referring or commenting on the election, political parties, branches of
political parties, candidates, groups of candidates and issues submitted to or before the
electors in connection with the election, will continue, although with a slightly
narrower scope in relation to new Part XXA. Only comments on the election,
political parties, branches of political parties, candidates, groups of candidates and
issues submitted to or before the electors in connection with the election will be
within scope of new Part XXA. These remaining paragraphs are considered broad
enough to adequately capture content of communication, which can reasonably be
taken to be electoral matter, while ensuring sufficient nexus or connection to a federal
election.
Item 5 - Paragraph 308(1)(e)
20. This item repeals and substitutes paragraph 308(1)(e). Section 308 specifies
those types of electoral expenditure which need to be included in returns of electoral
expenditure in accordance with the requirements of Division 5 of Part XX of the
Electoral Act. The paragraph is updated to provide that expenditure incurred on the
communicating of any electoral matter, which is communicated during the election
period and for which particulars are required to be notified under new section 321D,
is electoral expenditure for the purposes of Division 5 of Part XX of the Electoral Act.
However, this will not be the case if the expenditure is already covered by specific
inclusions in paragraphs 308(1)(a), (b) and (c) dealing with broadcasting of
advertisements, publishing of advertisements in journals and the display of
advertisements at a theatre or other place of entertainment relating to the election
during the election period.
11
Item 6 - Subparagraph 314AEB(1)(a)(ii)
Item 7 - Subparagraph 314AEB(1)(a)(iii)
Item 8 - Subparagraph 314AEB(1)(a)(iv)
Item 9 - Subparagraph 314AEB(1)(a)(v)
21. These items amend subparagraph 314AEB(1)(a)(ii), repeal and substitute
subparagraph 314AEB(1)(a)(iii) and amend subparagraphs 314AEB(1)(a)(iv) and
314AEB(1)(a)(v).
22. Subsection 314AEB(1) specifies those types of political expenditure which
require a person to provide a return for a financial year. There are further conditions
that give rise to the need for a return, namely the amount of the expenditure and the
characteristics of the person giving authority to incur the expenditure.
23. Subparagraph 314AEB(1)(a)(ii) provided that a person who incurred
expenditure, by or with his or her own authority, for the public expression of views on
an issue in an election by any means, must provide a return for a financial year where
further conditions are met. This subparagraph is updated to refer to the public
expression of views on an issue that is, or likely to be, before electors in an election
by any means, whether or not a writ has been issued for the election. This clarifies
that to give rise to a need for a return, the public expression of views must relate to an
upcoming election rather than a past election.
24. Subparagraph 314AEB(1)(a)(iii) is updated to provide that where a person
incurred expenditure on the communicating of any electoral matter for which
particulars are required to be notified under new section 321D, it is a type of
expenditure that may give rise to the need for a return if further conditions are met.
However, this will not be the case if the expenditure is already covered by specific
inclusions in subparagraphs 314AEB(1)(a)(i) and (ii), which deal with the public
expression of views on a political party, candidate in an election, a member of the
House of Representatives or the Senate or on an issue that is, or likely to be, before
electors in an election. This prevents the same expenditure from being included
multiple times in an annual return.
25. Subparagraph 314AEB(1)(a)(iv) is updated to provide that where a person
incurred expenditure on the broadcast of political matter, in relation to which
particulars are required to be announced under subclause 4(2) of Schedule 2 to the
Broadcasting Services Act 1992 (the Broadcasting Services Act), it is a type of
expenditure that may give rise to the need for a return if further conditions are met.
However, this will not be the case if the expenditure of political matter is already
covered by subparagraph 313AEB(1)(a)(iii). This also prevents the same expenditure
from being included multiple times in an annual return.
26. Subparagraph 314AEB(1)(a)(v) is updated to provide that where a person
incurred expenditure on the carrying out of an opinion poll, or other research, relating
to an election, whether or not a writ has been issued for the election, or the voting
intentions of electors, it is a type of expenditure which may give rise to the need for a
return if further conditions are met. This clarifies that such expenditure may relate to
an upcoming election even if the writs have not yet been issued.
12
Item 10 - After Part XX
27. This item inserts new Part XXA of the Electoral Act dealing with
authorisation of electoral matter.
Division 1 - Preliminary
Section 321B
28. Section 321B provides various definitions for the purposes of Part XXA,
which are addressed below.
"Address"
29. "Address" means different things depending on whether the person is a natural
person or an entity. For a natural person, "address" means a full street address and
suburb or locality at which the person can be contacted. For an entity with a principal
office, "address" means a full street address and suburb or locality of the office. For
an entity without a principal office, but with premises, "address" means a full street
address and suburb or locality of the premises. For an entity with neither a principal
office nor premises, "address" means a full street address and suburb or locality at
which the natural person who was responsible for giving effect to the authorisation
can be contacted.
30. However an "address" for the purposes of Part XXA is not a post office box
for either a natural person or an entity. The definition of "address" is relevant to the
particulars required to be notified for certain types of printed matter in subsection
321D(5).
"Ancillary contravention"
31. "Ancillary contravention" of section 321D means a contravention of that
section as a result of section 92 of the Regulatory Powers Act. Specific activities,
referred to as ancillary contraventions, are taken to be contraventions under section 92
of the Regulatory Powers Act. In particular, these activities are: attempting a
contravention; aiding, abetting, counselling or procuring a contravention; inducing a
contravention, being knowingly concerned in a contravention; or conspiring with
others to affect a contravention.
"Authorises"
32. A person "authorises" the communication of electoral matter only if the
person approves the content of the matter before it is communicated or, if the content
is not approved before the matter is communicated, the person communicates the
matter. This provision is intended to ensure that the person who is considered to have
authorised the communication of electoral matter is the person who is responsible for
the communication rather than other persons involved in the communication who may
not necessarily be responsible. Responsibility is demonstrated by approving the
content of matter before it is communicated, or having sufficient authority to
communicate matter without content being approved by someone else.
13
33. The definition of "authorises" is relevant to the requirements to notify
particulars under new subsection 321D(3). There are also specific exclusions from
the term "communicate" (see definition of "communicate").
34. Two specific examples are provided under the definition of "authorises". In
the case of a call centre, the person who was originally responsible for approving the
content of the phone calls from the call centre is the person who authorises the
communication. In the case of an email, whose content has not previously been
approved, the person who sends the email authorises the communication. The
following additional examples illustrate other instances of a person who authorises
electoral matter under the definition:
Example 1: "Authorises"
Raycelle Evans is the campaign manager for Tracey Arendt, a candidate in the upcoming
federal election. Raycelle drafts a speech for Tracey to use at a campaign event. Tracey reads
over the speech, requesting some edits before she approves it.
In this example, Tracey has "authorised" the speech. Even if she hadn't read over the speech
and approved it prior to delivering the speech, Tracey has ultimate control over what she says
or will not say and by reading the speech, Tracey is approving it in the form she delivers.
Example 2: "Authorises"
Tracey sees an online post from the incumbent Member of Parliament, against whom she is
running, promising to ban dogs from local parks if he is elected. Tracey reposts her opponent's
post, with the comment 'shame!'
In this example, the incumbent member "authorises" the original post. Tracey "authorises" the
reposted post. The communication Tracey is authorising includes the original post (which she
reposts) and her comment on it. However, the provider of the service used to post the
messages does not "authorise" either post as the service provider did not make the decision to
communicate the content.
Example 3: "Authorises"
John feels passionately that Tracey Arendt is the best candidate running in his
electorate/Division. He raises $40,000 and decides to use the money to hire a call centre to
ring people in his electorate to convince them to vote for Tracey. The call centre asks John to
provide a script to cover many hypothetical scenarios. John emails the script to the call centre
and asks them to proceed with calling voters in his electorate/Division.
John has "authorised" the communication as he approved the content (the script) of electoral
matter that was communicated. The provider of the telephone service used by the call centre
does not "authorise" the matter communicated as the telephone service provider did not make
the decision to communicate the content.
Example 4: "Authorises"
A printer is contracted to print a document supplied by Raycelle Evans, the campaign manager
for Tracey Arendt. Raycelle developed the content and provided it to the printer without
consulting Tracey. The printer has not "authorised" the communication as the printer did not
make the decision to communicate the content. Raycelle has "authorised" the communication.
"By-election"
35. "By-election" means an election of a member of the House of Representatives
that is not part of a general election. Under section 4(1) of the Electoral Act, "general
election" means a general election of the members of the House of Representatives.
14
"Communicate"
36. A carriage service provider does not "communicate" electoral matter merely
because the carriage service provider supplies the listed carriage service used to
communicate the matter. This definition makes it clear that telecommunications and
internet service providers who merely provide a service, which is being used by an
entity to communicate an electoral matter, is not communicating or authorising the
communication of the matter.
"Conduct"
37. "Conduct" means an act or an omission to perform an act.
"Disclosure entity"
38. A person or entity is a "disclosure entity" at a particular time if the person or
entity is any of the following at that time:
a registered political party (paragraph (a)). Under subsection 4(1) of the
Electoral Act, "registered political party" means a political party that is
registered under Part XI.
an associated entity (within the meaning of Part XX of the Electoral Act)
(paragraph (b)). "Associated entity" is defined in subsection 287(1) of the
Electoral Act. Examples of associated entities include '500 clubs', 'think
tanks', registered clubs, service companies, trade unions and corporate
party members, provided that they fall within the relevant definition in
subsection 287(1).
a Senator or member of the House of Representatives (paragraph (c));
a candidate in an election or by-election (paragraph (d))
a person who was a candidate in an election or by-election of a member of
the House of Representatives in the previous 4 years, or in an election of
Senators for a State or Territory in the previous 7 years (paragraph (e)).
This period broadly aligns with that used in section 287 for the disclosure
period relevant to candidates for the purposes of Part XX of the
Electoral Act.
a group of two or more candidates nominated for election to the Senate
who have their names grouped in the ballot papers in accordance with
section 168 (paragraph (f)), commonly referred to as a Senate group.
a person who is or will be required to provide a return under section 305A,
305B or 314AEB for the financial year in which the time occurs, except a
return provided solely under subparagraph 314AEB(1)(a)(v) (paragraph
(g)). This provision includes those persons who are required to provide a
return for the financial year in which the communication occurs, or who
will be required to (despite the financial year not having concluded).
- In this context, section 305A covers persons who make gifts above a
disclosure threshold to any candidate in the election, a member of a
group or any other person specified by legislative instrument.
Section 305B covers persons who make gifts above a disclosure
threshold to registered political parties and State branches of registered
15
political parties. Section 314AEB covers persons who have incurred
specified political expenditure.
- Subparagraph 314AEB(1)(a)(v) refers to the carrying out of an opinion
poll, or other research, relating to an election or the voting intentions of
electors. Excluding persons or entities that are or will be required to
provide a return solely for incurring expenditure for opinion polling or
research relating to voting intentions is consistent with the position that
communication of this type is an exception to the authorisation
requirements by virtue of paragraph 321D(4)(c).
a person who, based on conduct in previous financial years, may be
required to provide a return under section 305A, 305B or 314AEB for the
financial year in which the time occurs, except a return provided solely
under subparagraph 314AEB(1)(a)(v) (paragraph (g)). This is intended to
cover the circumstance where persons have previously provided a return,
and although they are not yet a person who is or will be required to
provide a return for the financial year in which the communication occurs,
their previous conduct indicates a likelihood that they will be required to
provide a return for the financial year.
"Election"
39. "Election" means a general election or election of Senators for a State or
Territory. Under section 4(1), "general election" means a general election of the
members of the House of Representatives.
"Primary contravention"
40. "Primary contravention" of section 321D means a contravention of that
section that is not an ancillary contravention (also defined in new section 321B) of
that section.
"Relevant town or city"
41. "Relevant town or city" in relation to an entity that authorised the
communication of electoral matter means different things depending on the situation
of the entity. For an entity with a principal office, "relevant town or city" means the
town or city in which the office is located. For an entity without a principal office, but
with premises, "relevant town or city" means the town or city in which the premises
are located. For an entity with neither a principal office nor premises, "relevant town
or city" means the town or city in which the natural person who was responsible for
giving effect to the authorisation lives.
Section 321C
42. Section 321C provides the objects of new Part XXA of the Electoral Act.
Subsection 321C(1) provides that the object of Part XXA is to promote free and
informed voting at elections by enhancing the transparency, accountability and
traceability of communications with voters. These objects reflect the
recommendations of the Joint Standing Committee on Electoral Matters (JSCEM), in
The 2016 Federal Election: Interim Report on the authorisation of voter
communication.
16
43. The JSCEM recommended that: the authorisation of electoral materials ensure
that parties and other participants should be held to account and be responsible for
their political statements; and those who authorise electoral materials should be
identifiable and traceable for enforcement and other purposes (Recommendation 1).
The JSCEM also recommended that an objects clause be included in the Electoral Act
to complement and strengthen existing legislation (Recommendation 3).
44. Subsection 321C(2) specifies how the new Part XXA aims to achieve the
objects in subsection 321C(1), reflecting the requirements contained in new section
321D. This is by requiring identifying details ('particulars') of the person who
authorised the communication of specified electoral matter to be notified. Specified
electoral matter is one of three types. The first type of matter is an electoral
advertisement where all or part of the distribution or production is paid for. As
reflected in a large proportion of the public submissions to the JSCEM inquiry and the
financial disclosure regime in Part XX of the Electoral Act, Australians desire a
heightened level of transparency when electoral communications have been paid for.
45. The second type is matter which forms part of certain types of printed matter.
These types of printed matter, specified in new paragraph 321D(1)(b), are currently
specified in old section 328. No longer requiring them to be authorised may weaken
current levels of transparency and accountability, which was not the intent of the
JSCEM recommendations underpinning the Bill. Furthermore, as printed matter is
more permanent that other forms of communication, it does not afford the same
opportunities to voters to interact in order to identify the source of the communication
as is typical in electronic or other communication mediums.
46. The third type is matter communicated by, or on behalf of, a disclosure entity.
Subsection 321(C)(2)(b) provides that new Part XXA aims to achieve transparency by
ensuring identifying details are clearly identifiable, irrespective of how the matter is
communicated.
47. Subsection 321C(3) notes that new Part XXA is not intended to detract from
the ability of electoral matters to be communicated to voters, and voters' ability to
communicate with each other on electoral matters. This highlights that, when
applying the requirements in new section 321D, public debate should be enhanced
through increased transparency and accountability, and not stilted by red tape that
does not contribute to the objects specified in new section 321C.
Division 2 - Authorisation of certain electoral matter
Section 321D
48. Subsection 321D(1) specifies the requirements for electoral matter, as defined
in subsection 4(1) of the Electoral Act (see item 2), to be authorised.
49. Under subsection 321D(1), electoral matter must be communicated to a person
to fall within the scope of the requirement. Any method of communication is
covered, including all methods of displaying, publishing or distributing visual, audio
or audio-visual material and face-to-face communication containing electoral matter.
However, in accordance with the definition of "communicate" in section 321B,
communication does not include the supply of a listed carriage service by a carriage
service provider. Electoral matter is defined broadly and is not specific as to its form.
17
50. Under paragraph 321D(1)(a), in addition to electoral matter being
communicated to a person, all of the following must apply for electoral matter (in the
form of an advertisement) to require an authorisation:
the matter is an electoral advertisement (subparagraph 321D(1)(a)(i)). In
this context, advertisement takes its ordinary meaning. The Macquarie
Dictionary defines "advertisement" as 'any device or public
announcement, as a printed notice in a newspaper, a commercial film on
television, a neon sign, etc., designed to attract public attention, bring in
custom' etc. Any advertisement containing electoral matter is intended to
be covered.
all or part of the distribution or production of the advertisement, was paid
for (subparagraph 321D(1)(a)(ii)). In this context, 'paid for' is intended to
include the incurring of any expense related to the production or
distribution of the advertisement, in addition to any payments made.
Being 'paid for' is also intended to include in kind payments, where no
money is involved, such as bartering or exchange arrangements.
the content of the advertisement was approved by a person (the "notifying
entity"), whether or not that person is the person who paid for the
distribution or production of the advertisement
(subparagraph 321D(1)(b)(iii)).
Without limiting the types of advertisements requiring authorisation under paragraph
321D(1)(a), some examples of paid electoral advertisements include newspaper
advertisements, internet-based advertising (such as website and 'app' banners,
sidebars, tiles and pop-ups), and marketing techniques such as 'advertorials', 'native
advertising' and push-polls. Push polling is a marketing technique in which an
advertisement occurs under the guise of an opinion poll. Unlike opinion polls, push
polls are an advertisement aiming to persuade their audience rather than collecting
data for analytical purposes, and they do not adhere to statistically valid sampling
procedures. Promotional items, such as toys, trinkets and plastic cards (including
where such items imitate a real item in an issue to which they relate) are also likely to
be paid advertising.
51. Under paragraph 321D(1)(b), authorisation is required where electoral matter
is communicated to a person via a sticker, fridge magnet, leaflet, flyer, pamphlet,
notice, poster or how-to-vote card.
52. Under paragraph 321D(1)(c), where electoral matter is communicated to a
person and is not covered by paragraphs 321D(1)(a) or (b), authorisation is required
where the matter is communicated by, or on behalf of, a disclosure entity (the
"notifying entity").
53. "Disclosure entity" is defined in new section 321B. The provision captures
communication by, or on behalf of, those with a clear and obvious interest in the
outcome of the election (political parties, associated entities, candidates and Senate
groups). It also captures communication by, or on behalf of, entities who are, will or
may be required to provide a return related to political expenditure or gifts over the
disclosure threshold, an amount of money which is published on the website of the
Australian Electoral Commission and indexed annually in accordance with
section 321 of the Electoral Act. The disclosure threshold in 2016-17 is $13,200. The
definition of "disclosure entity" ensures that those who demonstrate their interest in
18
the outcome of the election, by virtue of their expenditure or gifts do not engage in
anonymous communication intended or likely to affect voting in an election. It also
ensures that the coverage of the requirement is limited to an objectively defined class
of persons.
54. Note 1 under subsection 321D(1), explains that matter may be communicated
on behalf of an entity whether or not the entity pays for the communication of the
matter. In this context, where matter is being communicated for the benefit of, and at
the instruction or request of, the disclosure entity, it will be considered to be
communicated 'on behalf of' the disclosure entity. The following examples illustrate
instances of communication on behalf of a disclosure entity:
Example 5: 'On behalf of'
The Flora Party contracts a marketing firm to run their election campaign. The marketing firm
refuses any payment for the campaign, whether in cash or in-kind.
The marketing firm designs a communications strategy using a wide range of media including:
highway billboards; boosting the search results of the Flora Party in commonly used search
engines and social networking sites; a celebrity endorsement publicised through spots on
breakfast television; and an app which simulates growing a flower garden. The Flora Party
must ensure all communications that the marketing firm has produced and distributed for them
meets the requirements of section 321D and that the particulars of the Flora Party are notified.
This is because the marketing firm is communicating on its behalf and, as a registered political
party, the Flora Party is a disclosure entity. It is immaterial whether or not the marketing firm
pays for the production or distribution of any given communication. For example, the
celebrity endorsement must still include the Flora Party's particulars irrespective of whether
or not the celebrity is a volunteer or is paid.
Example 6: 'On behalf of'
John, a retired carpenter, sees the Flora Party's celebrity endorsement on television. He is
convinced by the arguments put forward by the celebrity and decides to door-knock in his
neighbourhood to try and convince his neighbours to vote for the Flora Party.
Neither the Flora Party nor John must ensure particulars are notified in John's conversations
with his neighbours, as the content of those conversations, while possibly for the benefit of the
Flora Party, is not being communicated at the instruction or request of the Party. The
communication is therefore not occurring 'on behalf of' the Flora Party.
Example 7: 'On behalf of'
John joins the Flora Party's mailing list. He receives an email containing the following text:
Dear Flora Party supporters
The election is just days away now! Make sure to organise a Flora Party phone tree! All you
have to do is invite some friends over and call ten people you know, making sure to mention
the following points:
Joseph Banks is the candidate running for the Flora Party in our electorate
Vote for the Flora Party in order to protect Australia's native flowers
You are calling on behalf of the Flora Party, headquartered in Orange, and that Ben
Fitz of the Flora Party authorised the communication this message. We find the
easiest way to raise this last point is at the beginning of your call. You might want to
mention we emailed you asking you to call your friends for us.
John organises the phone tree party for the night before polling day. He and his friends each
call their friends, reading the three dot points from the Flora Party's email more or less
verbatim. The phone calls are made 'on behalf of' the Flora Party. The carriage service
19
providers (the phone companies) used by John and his friends to make the calls do not
"communicate" the matter and are therefore not "notifying entities". The internet service
provider the Flora Party uses to send the emails does not "communicate" the matter and
therefore is not the 'notifying entity'.
55. Note 2 under subsection 321D(1) provides examples that may be covered by
this section 321D, including how-to-vote cards, and printed material, internet
advertisements, bulk text messages and bulk voice calls containing electoral matter.
56. Note 3 under subsection 321D(1) refers readers to the geographical application
of section 321D, provided for by section 321E.
57. Note 4 under subsection 321D(1) refers readers to the meaning of
"communicate" for carriage service providers included in section 321B. See
paragraph 34 of this Explanatory Memorandum.
58. Subsection 321D(2) provides that for the purposes of subsection 321D(1), if
electoral matter is communicated by an individual who is a disclosure entity, and is
communicated on behalf of another disclosure entity which approved the content of
the matter before it is communicated, the other disclosure entity (and not the
individual) is the "notifying entity". This covers situations such as the
communication by a candidate of electoral matter approved by a registered political
party. It ensures that the political party and not the candidate is the "notifying entity"
which must notify particulars in accordance with subsection 321D(5).
Exceptions
59. Subsection 321D(3) specifies exceptions to the requirement for particulars to
be notified under section 321D. Section 321D does not apply in relation to electoral
matter that:
forms part of clothing or any other item that is intended to be worn on the
body (paragraph 321D(3)(a)). Communication using these items would
generally involve the opportunity to engage with the wearer of those items
and to seek any required clarification where the person who authorised the
communication is unclear. Furthermore, the durability of clothing and its
utility for purposes unrelated to communication, such as protection from
weather, means that clothing is likely to be displayed after an election.
The inclusion of particulars on these items, perhaps years after an election,
may imply that the notifying entity still holds a view expressed on an item
of clothing when that is not the case. Therefore, the inclusion of particulars
on clothing and other items intended to be worn may detract from, rather
than support, the objects in section 321C.
forms part of a communication, or in any other circumstances, determined
under subsection 321D(7) for the purposes of this paragraph.
60. Subsection 321D(4) specifies further exceptions to the requirement for
particulars to be notified under section 321D in respect of matter communicated by, or
on behalf of, a disclosure entity (and is not an electoral advertisement covered by
paragraph 321D(1)(a)). These exceptions are matter that forms part of:
the reporting of news, the presenting of current affairs or any editorial
content in the news media (paragraph 321D(4)(a)). This exception is
20
intended to ensure that there is a free media able to comment on matters
related to elections without being subject to authorisation requirements.
a communication engaged in solely for genuine satirical, academic or
artistic purposes (paragraph 321D(4)(b)). For a communication to be
solely for genuine satirical, academic or artistic purposes, there can be no
intent to affect voting in an election. In the event that there are multiple
purposes which incorporate such an intent, then the communication cannot
be solely for genuine satirical, academic or artistic purposes.
an opinion poll or research relating to voting intentions at an election or
by-election (paragraph 321D(4)(c)). As opinion polling or research related
to voting intentions has the purpose of collecting information from voters
rather than communicating it, this exception is intended to allow
information in these activities not be authorised, even if done by or on
behalf of a disclosure entity. The nature of opinion polling and research
means that requiring authorisation, rather than preserving anonymity,
could influence the information that voters are willing to provide and
therefore the results of that poll or research. As discussed in paragraph 44,
push polls are a form of advertising, not a form of opinion polling, and
thus do not fall under the exception in paragraph 321D(4)(c).
a communication for personal purposes (paragraph 321D(4)(d)). This
exception is intended to ensure that personal communications which are
for personal purposes and clearly not intended to be communicated more
broadly do not require authorisation. Examples of personal purposes
include where a candidate or supporter of a politically-active group calls a
member of his/her family or a close personal friend and discusses election
issues with no intention that their views will be distributed more widely or
discusses their emotions and relationships in the campaign with a
counsellor.
an internal communication of a notifying entity (paragraph 321D(4)(e)).
This exception is intended to ensure that internal communications of
disclosure entities such as internal political party communications which
are clearly not intended to be communicated more broadly, such as internal
consultation on a campaign strategy, do not require authorisation.
a communication at a meeting of two or more persons if the identity of the
person (the "speaker") communicating at the meeting, and any disclosure
entity on whose behalf the speaker is communicating, can reasonably be
identified by the person or persons to whom the speaker is speaking
(paragraph 321D(4)(f)). 'Meeting' in this context is intended to refer to
any assembly or gathering, including in-person, by telephone or using
other mediums. It would be expected that the speaker and relevant
disclosure entity could reasonably be identified through a range of
methods, such as introducing themselves or being introduced, or having
signage present indicating who the speaker is and any relevant disclosure
entity.
a live communication of a meeting covered by paragraph 321D(4)(f), but
not any later communication of that meeting (paragraph 321D(4)(g)). This
removes the authorisation requirements from live communication, such as
live broadcasting, without exempting later communication such as delayed
broadcasting.
21
Notifying particulars
61. Subsection 321D(5) specifies the particulars that the notifying entity must
ensure are notified, in accordance with any requirements determined under subsection
321D(7). These requirements are set out in a table in subsection 321D(5), and differ
according to whether the communication:
is a type of printed matter specified in subparagraph 321D(5)(1)(b)(i);
was authorised by a disclosure entity; and
was authorised by a natural person.
62. The requirement for the notifying entity to 'ensure' particulars are notified
allows for the possibility that they do not notify those particulars themselves in order
to meet their obligation.
Example 8: 'Ensure' particulars are notified
Jason Birch is the spokesperson for a politically active group which reports expenditure under
Part XX of the Electoral Act under the name "Citizens Ink". Jason is being interviewed on
Citizens Ink's candidate recommendations for a Northern Territory electorate on a local radio
station. The interviewer introduces Jason by saying:
I'm here with Jason Birch, the spokesperson for Citizens Ink, an advocacy group
based across the border in Mackay. Jason, how's it going?
Jason has met his obligation to notify particulars under subsection 321D(5) as the interviewer
has notified all particulars required of Citizens Ink communications authorised by Jason. Jason
does not need to repeat the particulars; by listening to the interviewer and verifying that all
particulars have been notified, he has "ensured" that they have been notified.
Specified printed matter authorised by a disclosure entity
63. Special rules apply to electoral matter communicated by a sticker, fridge
magnet, leaflet, flyer, pamphlet, notice, poster or how to vote card. These rules have
been retained from old section 328 for the reasons outlined in paragraph 45. They are
not intended to significantly detract from the ability of electoral matters to be
communicated to voters.
64. If these types of communication are authorised by a disclosure entity that is
not a natural person, item 1 requires the following particulars:
the name of the entity, which, if the entity has previously lodged a return
under Part XX of the Electoral Act, must match the name of the entity
used in the most recent return lodged in relation to the entity;
o If the disclosure entity has not yet lodged a return under Part XX,
but will or may be required to, the name they intend to use on the
return should be used. If the name subsequently used on the Part
XX return differs from the name included as particulars, from the
point in time that the Part XX return is lodged, the disclosure entity
must use the name used in the Part XX return. The inclusion of the
name of the entity supports transparency by allowing voters to
reconcile the name of an entity included in the particulars with
returns under Part XX. It supports voters being able to inform
22
themselves of the demonstrated interests of an authorising entity in
the outcome of an election.
the address of the entity, with "address" as defined in section 321B;
the name of the natural person responsible for giving effect to the
authorisation;
the name of the printer who printed the communication;
the address of the printer, with "address" as defined in section 321B.
65. If a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how to
vote card authorised by a natural person who is a disclosure entity, item 3 requires the
following particulars:
the name of the person;
the address of the person, with "address" as defined in section 321B;
the name of the printer who printed the communication; and
the address of the printer, with "address" as defined in section 321B.
Other forms of communication by a disclosure entity
66. Special rules also apply to disclosure entities when they communicate in
mediums not mentioned in paragraph 65. If the entity is not a natural person, item 2
requires the following particulars:
the name of the entity, which, if the entity has previously lodged a return
under Part XX of the Electoral Act, must match the name of the entity
used in the most recent return lodged in relation to the entity;
o If the disclosure entity has not yet lodged a return under Part XX,
but will or may be required to, the name they intend to use on the
return should be used. If the name subsequently used on the
Part XX return differs from the name included as particulars, from
the point in time that the Part XX return is lodged, the disclosure
entity must use the name used in the Part XX return.
the relevant town or city of the entity, as defined in section 321B; and
the name of the natural person responsible for giving effect to the
authorisation.
67. The particulars contribute to the objects in section 321C in different ways. The
inclusion of the name of the entity supports transparency by allowing voters to
reconcile the name of an entity included in the particulars with returns under Part XX.
It supports voters being able to inform themselves of the demonstrated interests of an
authorising entity in the outcome of an election.
68. The requirement to notify the relevant town or city provides further
information to voters with respect to local issues. A voter may give more weight to a
communication about a local issue in an election where the communication is made
by a person or organisation in their own city or town, particularly where local
interests differ from those of other areas. For example, a proposed infrastructure
project or environmental policy being debated during an election period might
disproportionately benefit one electorate while disadvantaging a neighbouring
23
electorate. Information about the geographic source of communications on these
issues is likely to be important to voters when they evaluate how much weight to give
the communications in order to decide for whom to vote.
69. The requirement to notify the name of the natural person responsible for
giving effect to the authorisation is intended to: increase transparency and provide
certainty for voters as to the veracity of the particulars; promote accountability within
disclosure entities; and assist the Electoral Commission to enforce non-compliance,
by providing a direct point of contact in relation to disclosure entities. This
requirement is also intended to support the ability of people to take civil action if they
consider the communication to be defamatory or otherwise unlawful, particularly
where a disclosure entity is a non-legal person.
70. If the disclosure entity is a natural person, for example, a candidate or a
generous individual political donor, item 4 requires the following particulars:
the name of the person; and
the town or city in which the person lives.
Disclosure entities that are natural people communicating to small audiences or to
people they know are expected to be frequently covered by the exemptions in
subsection 321D(4), or able to comply with the requirements in item 4 relatively
easily. Where an exception in 321D(4) does not apply, it is appropriate for voters to
understand the source of the communication via the requirement to notify the
particulars in item 4. For example, in an email containing electoral matter to a
constituent or parliamentarian from another party, a member of parliament could use a
signature block containing the required notifying particulars. (Note that if the
parliamentarian to whom the email was sent was from the same party, the exception
in paragraph 321D(4)(e) may apply).
Specified printed matter authorised by a non-disclosure entity
71. As outlined in paragraph 63, special rules apply to electoral matter
communicated by a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or
how to vote card. Non-disclosure entities, however, are subject to fewer requirements
than disclosure entities. It is appropriate that disclosure entities be subject to more
requirements because they are likely to seek to exert the most influence on voters.
For communications not authorised by a natural person, disclosure entities must
include the name of the natural person (see paragraph 64). In contrast, the name of the
natural person does not need to be included for communications authorised by an
entity that is neither a disclosure entity nor a natural person
72. If these specified types of communication are authorised by an entity that is
neither a disclosure entity nor a natural person, item 5 requires the following
particulars:
the name of the entity;
the address of the entity, with "address" as defined in section 321B;
the name of the printer who printed the communication;
the address of the printer , with "address" as defined in section 321B.
24
73. If 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, item 7 requires
the following particulars:
the name of the person;
the address of the person, with "address" as defined in section 321B;
the name of the printer who printed the communication;
the address of the printer, with "address" as defined in section 321B.
Other forms of communication by a non-disclosure entity
74. Special rules also apply to non-disclosure entities when they communicate in
mediums not mentioned in paragraph 72, for example, via a paid advertisement. If the
entity is neither a disclosure entity nor a natural person, item 6 requires the following
particulars:
the name of the entity; and
the relevant town or city, as defined in section 321B.
75. If the entity is a natural person who is not a disclosure entity, item 8 requires
the following particulars:
the name of the person; and
the town or city in which the person lives.
Subsection 321D(5) is a civil penalty provision
76. Subsection 321D(5) is a civil penalty provision which is enforceable under the
Regulatory Powers Act. A person who fails to notify the particulars, or notifies
incorrect particulars, contravenes this civil penalty provision. The relevant civil
penalty is 120 penalty units. The amount of the relevant penalty is calculated in
accordance with section 4AA of the Crimes Act 1914, and is commensurate with
similar Commonwealth regulatory regimes.
77. Where a notifying entity that is not a legal entity, for example, a citizens'
group, contravenes subsection (5), subsection 321D(6) provides that for the purposes
of the Electoral Act and the Regulatory Powers Act, each member, agent or officer
(however described) of the entity who contributed to the contravention through action
or inaction in their role would be individually responsible for not meeting the
authorisation obligation of the notifying entity as required by subsection 321D(5).
25
Example 9: Failure to notify by entity that is not a legal person
A registered political party's how-to-vote cards does not include the correct particulars
required by subsection 321D(5). According to the party's constitution, all how to vote cards
must be approved by the Director of Communication, the National President and the relevant
Electorate Director. The Director of Communication, National President and the relevant
Electorate Director are each subject to the civil penalty as individuals in relation to the
non-compliant how to vote cards.
Example 10: Failure to notify by a body corporate
An incorporated legal entity has failed to comply with subsection 321D. Subsection 321D(6)
does not apply and the party is subject to the civil penalty associated with bodies corporate
under subsection 82(5) of the Regulatory Powers Act. Under subsection 82(5) of the
Regulatory Powers Act, bodies corporate are subject to a 'corporate multiplier' five times the
civil penalty amount specified for individuals. The legal entity is thus subject to a civil penalty
of 600 penalty units.
Example 11: Failure to notify by a Senate Group
Two independent candidates form a Senate group on the ballot paper for a Division. Each
candidate contributes funds to print how-to-vote cards to be distributed outside polling places,
and the content of the cards is approved by the Senate group before the how to vote cards are
distributed.
If the required particulars of the Senate group were not notified, each candidate in the Senate
Group is individually liable for up to the maximum civil sanction (120 penalty units) because
the Senate Group failed to include the required particulars when they approved the how to
vote cards.
78. Subsection 321D(7) allows the Electoral Commissioner to determine, by
legislative instrument, exceptions in communications or circumstances in accordance
with paragraph 321D(3)(b) of the Electoral Act, and paragraph 110C(3)(c) of the
Referendum Act, and requirements or particulars for the purposes of one of more of
the following:
subsection 321D(5) of the Electoral Act;
subsection 110C(5) of the Referendum Act;
subsection 79A(2) and paragraph 79A(6)(b) of the ABC Act;
paragraph 1(2)(b) and subclause 4(2) of Schedule 2 to the Broadcasting
Services Act; and
subsection 70A(2) and paragraph 70A(6)(b) of the SBS Act.
79. In making an instrument under new subsection 321D(7), the Electoral
Commissioner is required to ensure that the requirements or particulars are consistent
with the objects of the new Part as set out in new section 321C. Those objects include
allowing voters to know who is communicating electoral matter. Given the variety of
different mechanisms and technologies that can be used for communicating with
voters, it is envisaged that the instrument may include different requirements or
particulars for the different mechanisms and technologies. For example, for printed
material it may be appropriate for the instrument to specify that the notifying
particulars (e.g. the authorisation details) are to appear at the end (or bottom) of the
communication, whereas for communication via telephony, it may be more
appropriate for the requirements or particulars to specify that the notifying particulars
are to be spoken at the beginning of the communication. Subsection 33(3A) of the
26
Acts Interpretation Act 1901, would apply to the instrument under new subsection
321D(7), thereby enabling the instrument to contain different requirements or
particulars to be determined for different classes of communications.
80. The legislative instrument is a disallowable instrument under section 42 of the
Legislation Act 2003 (the Legislation Act). In making an instrument under subsection
321D(7), the Electoral Commissioner is expected to consult with relevant agencies, as
required by section 17 of the Legislation Act. Such consultation is important to ensure
the instrument is appropriate and is expected to include consultation with the Boards
of the ABC, the SBS and the ACMA. Furthermore, the Electoral Commissioner is
expected to take into account the consistency of the instrument with the objects
specified in section 321C and the regulatory burden of any additional requirements.
Section 321E
81. Section 321E provides for extended geographical application of section 321D.
This is intended to improve the ability to enforce alleged contraventions of the civil
penalty provision. The extended geographical application in subsection 321D(1) is
consistent with that provided for by subsection 15.2(1) of the Criminal Code Act 1995
(the Criminal Code) (extended geographical application - category B) which is
applied to various offences in the Electoral Act, and is considered appropriate in
relation to the civil penalty in section 321D. The exception provided for by
subsection 321D(2) is consistent with the defence in subsection 15.2(2) of the
Criminal Code.
Section 321F
82. Section 321F provides information-gathering powers to the Electoral
Commissioner. This section:
provides that section 321F applies to a person if the Electoral
Commissioner has reason to believe that they have information or a
document that is relevant to assessing compliance with section 321D
(subsection 321F(1))
allows the Electoral Commissioner to require a person, by written notice,
to give information or produce documents or make copies of any such
documents and to produce to the Commissioner, within the period an in
the manner and form specified in the notice, any such information,
documents or copies (subsection 321F(2))
requires the Electoral Commissioner to have regard to the likely costs in
complying with any requirement before giving a notice
(subsection 321F(3)), although regard may be had to other matters
(subsection 321F(4))
requires a notice to specify the effect of sections 137.1 and 137.2 of the
Criminal Code (subsection 321F(5)). Sections 137.1 and 137.2 of the
Criminal Code provide offences for production of false or misleading
documents and provision of false or misleading information
entitles a person to be paid reasonable compensation by the
Commonwealth for complying with a requirement to make copies of any
documents required by a notice under paragraph 321F(2)(c)
(subsection 321F(6)).
27
Section 321G
83. Section 321G provides powers for the Electoral Commissioner to inspect or
copy a document, and make and retain copies of, documents produced under section
321F. The Electoral Commissioner may retain possession of a copy of a document
produced in accordance with a requirement covered by paragraph 321F(2)(c).
Section 321H
84. Section 321H provides for the retention of documents. This section:
allows the Electoral Commissioner to take possession of a document
produced under section 321F and retain it for as long as necessary
(subsection 321H(1))
entitles a person otherwise entitled to a possession of the document to be
supplied a certified copy by the Electoral Commissioner as soon as
possible (subsection 321H(2))
allows the certified copy to be received in all courts and tribunals as
evidence as if it were the original (subsection 321H(3))
requires, until such time as a certified copy is supplied, the Electoral
Commissioner to permit a person otherwise entitled to possession of a
document, or a person authorised by that person, to inspect and make
copies of the document, at such times and places as he or she thinks
appropriate (subsection 321H(4).
Item 11 - Sections 328 to 328B
85. This item repeals section 328 to 328B. These sections provided authorisation
requirements in relation to printing and publication of particular electoral matter, the
publication of electoral advertisements on the internet and requirements relating to
how-to-vote cards. These specific requirements are superseded by new section 321D,
which provides requirements for authorisations.
Item 12 - Sections 331 and 334
86. This item repeals sections 331 and 334. Section 331 provided specific
requirements for headings in electoral advertisements in newspapers, magazines and
other periodicals. This is superseded by the authorisation requirements under new
subsection 321D which apply to all paid advertisements containing electoral matter.
Section 334 provided a prohibition on the writing, drawing or depicting of electoral
matter directly on any roadway, footpath, building, vehicle, vessel, hoarding or place.
This prohibition is unnecessary as new section 321D provides requirements for
authorisations.
Item 13 - Subsection 351(5)
87. This item amends subsection 351(5) to reflect the authorisation requirements
in new section 321D. Section 351 relates to the publication of matter regarding
candidates in elections, without the written authorisation or authority of the relevant
candidate. Subsection 351(5) is updated to replace references to authorisations under
the repealed sections 328, 328A and 328B and refer to the new requirements of
section 321D.
28
Item 14 - Before subsection 383(1)
Item 15 - Before subsection 383(2)
88. This item inserts headings to subsections 383(1) and 383(2) to make it clear
that they concern restraining injunctions and performance injunctions respectively.
Item 16 - After subsection 383(2)
89. This item inserts a power for the Federal Court to grant an injunction
restraining a carriage service provider from supplying a listed carriage service to the
notifying entity in certain circumstances. The power is available if an injunction
could be granted under subsections 383(1) or 383(2) of the Electoral Act in relation to
a contravention or proposed contravention of new section 321D, and the carriage
service provider is supplying, or is to supply, a listed carriage service to the notifying
entity, and that listed carriage service is to be used solely for the making of bulk voice
calls (for example, through the use of robocalls) or sending bulk test messages
communicating an electoral matter. A candidate in the election or the Electoral
Commission can make an application to the Federal Court for the grant of an
injunction if these criteria are met.
90. The term solely indicates that the listed carriage service being used by the
notifying entity is only being used to make the bulk voice calls or send the bulk text
messages, as to apply the power in relation to a listed carriage service that is being
used for other purposes could give rise to safety or other concerns (such as being
unable to contact essential services using the listed carriage service). The injunction
can only be granted in relation to the specific carriage service that is being supplied to
the notifying entity.
91. The item also inserts a power for the Federal Court to grant an injunction from
restraining a broadcaster from broadcasting the matter if an injunction could be
granted under current subsections 383(1) or 383(2) of the Electoral Act in relation to a
contravention or proposed contravention of new section 321D (the requirement to
authorise certain electoral matters). A candidate in the election or the Electoral
Commission can make an application to the Federal Court for the grant of an
injunction if these criteria are met.
92. This item also inserts a heading to subsection 383(3) to make it clear that it
concerns interim injunctions.
Item 17 - Subsection 383(3)
Item 18 - Subsection 383(3)
93. These items amend subsection 383(3) relating to interim injunctions, to allow
the Federal Court to grant an interim injunction restraining a carriage service provider
from supplying a listed carriage service or a broadcaster from broadcasting matter
pending the consideration and determination of an application made under
subsections 383(2A) or (2B).
29
Item 19 - Before subsection 383(4)
Item 20 - Subsection 383(4)
94. These items insert a heading to subsection 383(4) to make it clear that it
provides for discharging and varying injunctions, and amend subsection 383(4) to
allow the Federal Court to discharge or vary any injunction made under section 383,
including the new injunctions relating to carriage service providers and broadcasters.
Item 21 - Before subsection 383(5)
Item 22 - Subsection 383(5)
Item 23 - Subsection 383(6)
95. Item 21 inserts a heading to subsection 383(5) to make it clear that it relates to
the consideration by the Federal Court of past and future conduct.
96. Item 22 amends subsection 383(5), which relates to the exercise of power by
the Federal Court to grant a restraining injunction and the extent to which past and
future conduct can be considered in exercising its power to grant an injunction. The
amendment limits the application of subsection 383(5) to subsection 383(1). This
makes it clear that subsection 383(5) is irrelevant to injunctions restraining carriage
service providers and broadcasters under new subsections 383(2A) and (2B).
97. Item 23 amends subsection 383(6), which relates to the exercise of power by
the Federal Court to grant an injunction requiring a person to do an act or thing, and
the extent to which past and future conduct can be considered in exercising its power
to grant an injunction. The amendment limits the application of 383(6) to
subsections 383(1) and (2). This makes it clear that subsection 383(6) is irrelevant to
injunctions restraining carriage service providers and broadcasters under new
subsections 383(2A) and (2B).
Item 24 - After subsection 383(6)
98. This item inserts a new subsection 383(6A) to provide the circumstances in
which the Federal Court may exercise its power to grant an injunction if an
application to the Court is made under new subsections 383(2A) or (2B). The Federal
Court may grant an injunction if it is satisfied that the notifying entity has contravened
section 321D or it appears that it is likely that the notifying entity will contravene
section 321D. It is the conduct of the notifying entity that is relevant, rather than the
conduct of the carriage service provider or broadcaster.
99. This item also inserts a heading above subsection 383(7) to make it clear that
this subsection provides that there is no requirement to give any undertakings as to
damages.
Item 25 - Before subsection 383(10)
100. This item inserts a heading to subsection 383(10) to make clear that the
section relates to section 383 not limiting other powers of the Federal Court.
30
Item 26 - At the end of section 383
101. This item inserts definitions for the purposes of the section 383 of the
Electoral Act. It inserts a definition of the term "broadcaster" which will capture both
broadcasters within the meaning of the Broadcasting Services Act, and the national
broadcasters (the ABC and the SBS).
102. The item also inserts a definition of "bulk text message", which means an
electronic message (within the meaning of the Spam Act 2003) that is sent, in bulk, to
electronic addresses in connection with telephone accounts. The term 'bulk' is to be
given its ordinary meaning, and whether an electronic message is sent, in bulk, to
electronic addresses in connection with telephone accounts will turn on the
circumstances of individual cases.
103. The item also inserts a definition of "bulk voice call", which means a call, or
calls, that send in bulk a pre-recorded message to standard telephone services. The
effect of this definition would be to capture pre-recorded voice calls, otherwise known
as 'robocalls'. The term bulk is to be given its ordinary meaning, and whether a call,
or calls, are sent in bulk will turn on the circumstances of individual cases.
Item 27 - After section 384
104. This item inserts new section 384A.
105. Subsection 384A(1) provides that new section 321D is enforceable under
Parts 4 and 6 of the Regulatory Powers Act. A note is inserted under subsection
384A(1) to indicate that Part 4 of the Regulatory Powers Act allows a civil penalty
provision to be enforced by obtaining an order for a person to pay a pecuniary penalty
for the contravention of the provision.
106. Subsection 384A(2) specifies that, in relation to section 321D:
the Electoral Commissioner is an authorised applicant for the purposes of
Part 4 of the Regulatory Powers Act. This allows the Electoral Commissioner
to apply to the Federal Court for an order that a person who is alleged to have
contravened section 321D pay the Commonwealth a pecuniary penalty.
the Electoral Commissioner is an authorised person for the purposes of Part 6
of the Regulatory Powers Act. This allows the Electoral Commissioner to
accept an undertaking relating to compliance with section 321D, which may
be enforced in the Federal Court.
the Federal Court of Australia is a relevant Court for the purposes of Parts 4
and 6 of the Regulatory Powers Act.
Item 28 - Section 385A
107. This item repeals and substitutes section 385A. This section relates to
evidence of authorship or authorisation of material, and ensures admissibility of
evidence to facilitate proof that a person named in an authorisation or the printer or
author of certain matter is connected with the material. The section is updated to
reflect the broader language of new section 321D which refers to communications of
electoral matter rather than referring to specific mediums, and to ensure that applies to
a contravention of the new civil penalty provision in that section as well as offences.
31
Referendum (Machinery Provisions) Act 1984
Item 29 - Subsection 3(1)
108. This item inserts definitions of "carriage service provider", "civil penalty
provision", "listed carriage service" and "Regulatory Powers Act" into the
Referendum (Machinery Provisions) Act 1984 (the Referendum Act). These
definitions are the same as those used in items 1 and 3 relevant to the Electoral Act.
Further explanation on these definitions are at paragraphs 11, 12, 15 and 16.
Item 30 - After Part VIII
109. This item inserts new Part IX of the Referendum Act dealing with
authorisation of referendum matter.
Division 1 - Preliminary
110. Section 110A provides the following definitions for the purposes of Part IX,
which are addressed below.
"Address"
111. "Address" means different things depending on whether the person is a natural
person or an entity. For a natural person, "address" means a full street address and
suburb or locality at which the person can be contacted. For an entity with a principal
office, "address" means a full street address and suburb or locality of the office. For
an entity without a principal office, but with premises, "address" means a full street
address and suburb or locality of the premises. For an entity with neither a principal
office nor premises, "address" means a full street address and suburb or locality at
which the natural person who was responsible for giving effect to the authorisation
can be contacted.
112. However an "address" for the purposes of Part XXA is not a post office box
for either a natural person or an entity. The definition of "address" is relevant to the
particulars required to be notified for certain types of printed matter in subsection
321D(5).
"Ancillary contravention"
113. "Ancillary contravention" of section 110C means a contravention of that
section as a result of section 92 of the Regulatory Powers Act. Specific activities,
referred to as ancillary contraventions, are taken to be contraventions under section 92
of the Regulatory Powers Act. In particular, these activities are: attempting a
contravention; aiding, abetting, counselling or procuring a contravention; inducing a
contravention, being knowingly concerned in a contravention; or conspiring with
others to affect a contravention.
"Authorises"
114. A person "authorises" the communication of referendum matter only if the
person approves the content of the matter before it is communicated or, if the content
is not approved before the matter is communicated, the person communicates the
matter. This provision is intended to ensure that the person who is considered to have
32
authorised the communication of referendum matter is the person who is responsible
for the communication rather than other persons involved in the communication who
may not necessarily be responsible. Responsibility is demonstrated by approving the
content of matter before it is communicated, or having sufficient authority to
communicate matter without content being approved by someone else.
115. The definition of "authorises" is relevant to the requirements to notify
particulars under new subsection 110C(5). There are also specific exclusions from
the term "communicate" (see definition of "communicate").
116. Two specific examples are provided under the definition of "authorises". In
the case of a call centre, the person who was originally responsible for approving the
content of the phone calls from the call centre is the person who authorises the
communication. In the case of an email whose content has not previously been
approved, the person who sends the email authorises the communication. The
additional examples provided under the Electoral Act's definition of "authorises"
(see paragraph 32) are also relevant to the definition, if the content involved in those
examples was referendum matter rather than electoral matter.
"Communicate"
117. A carriage service provider does not "communicate" referendum matter
merely because the carriage service provider supplies the listed carriage service used
to communicate the matter. This definition makes it clear that telecommunications
and internet service providers who merely provide a service which is being used by an
entity to communicate referendum matter is not communicating or authorising the
communication of the matter.
"Conduct"
118. "Conduct" means an act or an omission to perform an act.
"Disclosure entity"
119. A person or entity is a "disclosure entity" at a particular time if the person or
entity is any of the following at that time:
a registered political party (within the meaning of the Electoral Act)
(paragraph (a)). Under subsection 4(1) of the Electoral Act, "registered
political party" means a political party that is registered under Part XI of
the Electoral Act.
an associated entity (within the meaning of Part XX of the Electoral Act)
(paragraph (b)). "Associated entity" is defined in subsection 287(1) of the
Electoral Act. Examples of associated entities include '500 clubs', 'think
tanks', registered clubs, service companies, trade unions and corporate
party members, provided that they fall within the relevant definition.
a person who is or will be required to provide a return under
section 314AEB of the Electoral Act (except a return provided solely
under subparagraph 314AEB(1)(a)(v) of that Act) for the financial year in
which the time occurs (paragraph (c)). This provision includes those
persons who are required to provide a return for the financial year in which
33
the communication occurs, or who will be required to (despite the financial
year not having concluded).
- Section 314AEB covers persons who have incurred specified political
expenditure.
- Subparagraph 314AEB(1)(a)(v) refers to the carrying out of an opinion
poll, or other research, relating to an election or the voting intentions of
electors. Excluding persons or entities that are or will be required to
provide a return solely for incurring expenditure for opinion polling or
research related to voting intents is consistent with the position that
communication of this type is an exception to the authorisation
requirements by virtue of paragraph 110C(4)(c).
a person who, based on conduct in previous financial years, may be
required to provide a return under section 314AEB of that Act (except a
return provided solely under subparagraph 314AEB(1)(a)(v) of that Act)
for the financial year in which the time occurs (paragraph(d)). This is
intended to cover the circumstance where persons have previously
provided a return, and although they are not yet a person who is or will be
required to provide a return for the financial year in which the
communication occurs, their previous conduct indicates a likelihood that
they will be required to provide a return for the financial year.
a person who has incurred expenditure in the period of 12 months before
the day the writ for the referendum is issued exceeding the amount referred
to in paragraph 314AEB(1)(b) of the Electoral Act, in relation to
referendum matter relating to the referendum (subparagraph (e)(i). This is
intended to capture persons who spend above the disclosure threshold
(currently $13,200) on a referendum issue in the twelve months prior to
the issue of the writ for a referendum on that issue. It is specific to each
referendum and does not apply in relation to referendums on issues in
relation to which an entity has not spent an amount above the disclosure
threshold in the twelve months prior to the issue of the relevant writ.
a person who expects to incur expenditure exceeding the amount referred
to in paragraph 314AEB(1)(b) of the Electoral Act, in relation to
referendum matter relating to the referendum (subparagraph (e)(ii)). Like
with subparagraph (e)(i), this subparagraph is specific to each referendum.
Fundraising targets, loans and contracts are non-exhaustive examples of
evidence that may demonstrate that a person expects to incur a specified
amount of expenditure for the purposes of this subparagraph.
a Senator or member of the House of Representatives (paragraph (f)).
120. Paragraph (e) of the definition of "disclosure threshold" is intended to capture
entities incurring significant political expenditure in relation to a given referendum.
It does not operate in relation to a financial year, as with Part XX of the Electoral Act.
This ensures that all expenditure relevant to a particular referendum is captured in the
threshold rather than expenditure being split over the end of one financial year, and
the beginning of the next financial year.
34
"Primary contravention"
121. "Primary contravention" of section 110C means a contravention of that section
that is not an ancillary contravention (also defined in new section 110A) of that
section.
"Referendum matter"
122. "Referendum matter" means matter intended or calculated to affect the result
of a referendum. This definition uses the terminology that previously appeared in
section 121, which is repealed by item 31.
"Relevant town or city"
123. "Relevant town or city" in relation to an entity that authorised the
communication of referendum matter means different things depending on the
situation of the entity. For an entity with a principal office, "relevant town or city"
means the town or city in which the office is located. For an entity without a principal
office, but with premises, "relevant town or city" means the town or city in which the
premises are located. For an entity with neither a principal office nor premises,
"relevant town or city" means the town or city in which the natural person who was
responsible for giving effect to the authorisation lives.
Section 110B
124. Section 110B provides the objects of new Part IX of the Referendum Act.
Subsection 110B(1) provides that the object of Part IX is to promote free and
informed voting at referendums by enhancing the transparency, accountability and
traceability of communications with voters. These objects are consistent with the
objects in new section 321C of the Electoral Act, but applicable to referendum matter
rather than electoral matter.
125. Subsection 110B(2) specifies how Part IX aims to achieve the objects in
subsection 110B(1), reflecting the requirements contained in new section 110C. This
is by requiring identifying particulars of the person who authorised the
communication of specified referendum matter to be notified. Specified referendum
matter is one of two types. The first type of matter is an advertisement relating to the
referendum where all or part of the distribution or production is paid for. The second
type is matter communicated by, or on behalf of, a disclosure entity as defined in new
section 110A. Subsection 110(B)(2) also provides that Part IX aims to achieve
transparency by ensuring identifying details are clearly identifiable, irrespective of
how the matter is communicated.
126. Subsection 110B(3) notes that new Part IX is not intended to detract from the
ability of referendum matters to be communicated to voters, and voters' ability to
communicate with each other on referendum matters. This highlights that, when
applying the requirements in new section 110C, public debate should be enhanced
through increased transparency and accountability, and not stilted by red tape that
does not contribute to the objects specified in new section 110B.
35
Division 2 - Authorisation of certain referendum matter
Section 110C
127. Subsection 110C(1) specifies the requirements for referendum matter, as
defined in new section 110A, to be authorised.
128. Under subsection 110C(1), referendum matter must be communicated to a
person to fall within the scope of the requirement. As referendum matter is defined
according to the intent of the communicator and is not specific as to its form, any
method of communication is covered, including all methods of displaying, publishing
or distributing visual, audio or audio-visual material and face-to-face communication
containing referendum matter. However, in accordance with the definition of
"communicate" in new section 110A, communication does not include the supply of a
listed carriage service by a carriage service provider.
129. Under paragraph 110C(1)(a), in addition to referendum matter being
communicated to a person, all of the following must apply for referendum matter (in
the form of an advertisement) to require an authorisation:
the matter is an advertisement relating to a referendum (subparagraph
110C(1)(a)(i)). In this context, advertisement takes its ordinary meaning.
The Macquarie Dictionary defines "advertisement" as 'any device or
public announcement, as a printed notice in a newspaper, a commercial
film on television, a neon sign, etc., designed to attract public attention,
bring in custom' etc. Any advertisement containing referendum matter is
intended to be covered.
all or part of the distribution or production of the production of the
advertisement, was paid for (subparagraph 110C(1)(a)(ii)). In this context,
'paid for' is intended to include the incurring of any expense related to the
production or distribution of the advertisement, in addition to any
payments made. Being 'paid for' is also intended to include in kind
payments where no money is involved, such as bartering or exchange
arrangements. It is also notable that it is irrelevant who paid for the
advertisement, and that this could be someone other than the person who
approved the content of the advertisement.
the content of the advertisement was approved by a person (the "notifying
entity"), whether or not that person is the person who paid for the
distribution or production of the advertisement (subparagraph
110C(1)(b)(iii)).
130. If all the criteria specified in paragraph 110C(1)(a) do not apply, but the
referendum matter is communicated via a sticker, fridge magnet, leaflet, flyer,
pamphlet, notice, poster or how-to-vote card, and the content was communicated by a
person, paragraph 110C(1)(b) provides that section 110C applies to the
communication.
131. Under paragraph 110C(1)(c), where referendum matter is communicated to a
person and is not covered by paragraphs 110C(1)(a) or (b), authorisation is required
where the matter is communicated by, or on behalf of, a disclosure entity (the
"notifying entity").
36
132. "Disclosure entity" is defined in new section 110A. The provision captures
communication by, or on behalf of, those who have made, or intend to make, a
significant financial investment in influencing the result of the referendum. It also
captures established and permanent parts of the political landscape relevant to
referendums, that is, registered political parties and their associated entities. This
ensures that the coverage of the requirement is limited to an objectively defined class
of persons.
133. Note 1 under subsection 110C(1) indicates matter may be communicated on
behalf of an entity whether or not the entity pays for the communication of the matter.
In this context, where matter is being communicated for the benefit of, and at the
instruction or request of, the disclosure entity, it will be considered to be
communicated 'on behalf of' the disclosure entity. The examples provided under
paragraph 47 relevant to the Electoral Act are also relevant to the interpretation of 'on
behalf of', if the content involved in those examples was referendum matter rather
than electoral matter and the relevant requirements were those in section 110C.
134. Note 2 under subsection 110C(1) to provides examples that may be covered by
this section including how-to-vote cards, and printed material, internet
advertisements, bulk text messages and bulk voice calls containing referendum
matter.
135. Note 3 under subsection 110C(1) refers readers to the geographical application
of section 110C, provided for by section 110D.
136. Note 4 under subsection 110C(1) refers readers to the meaning of
"communicate" for carriage service providers included in section 110A.
137. Subsection 110C(2) provides that for the purposes of subsection 110C(1), if
electoral matter is communicated by an individual who is a disclosure entity, and is
communicated on behalf of another disclosure entity which approved the content of
the matter before it is communicated, the other disclosure entity (and not the
individual) is the "notifying entity".
Exceptions
138. Subsection 110C(3) specifies exceptions to the requirement for particulars to
be notified under section 110C(5). Section 110C does not apply in relation to
referendum matter that:
forms part of clothing or any other item that is intended to be worn on the
body (paragraph 110C(3)(a)). Communication using these items would
generally involve the opportunity to engage with the wearer of those items
and to seek any required clarification where the person who authorised the
communication is unclear. Furthermore, the durability of clothing and its
utility for purposes unrelated to communication, such as protection from
weather, means that clothing is likely to be displayed after a referendum.
The inclusion of particulars on these items, perhaps years after a
referendum, may imply that the notifying entity still holds a view
expressed on an item of clothing when that is not the case. Therefore, the
inclusion of particulars on clothing and other items intended to be worn
may detract from, rather than support, the objects in section 110B.
37
is communicated by or on behalf of a State, a Territory or an authority of a
State or Territory (paragraph 110C(3)(b)). The Commonwealth does not
intend to infringe, in any way, the right of the States and Territories to
influence the voting in referendums implied by the double majority
mechanism in section 128 of the Constitution.
forms part of a communication, or in any other circumstances, determined
under subsection 321D(7) of the Electoral Act for the purposes of
paragraph 110C(3)(c) (paragraph 110C(3)(c)).
139. Subsection 110C(4) specifies further exceptions to the requirement for
particulars to be notified under section 110C in respect of matter communicated by, or
on behalf of, a disclosure entity (and is not an advertisement relating to a referendum)
covered by paragraph 110C(1)(a). These exceptions are equivalent to those provided
for by new subsection 321D(4) (see paragraph 53), but relevant to referendum matter
rather than electoral matter, and in relation to paragraph 321D(4)(c) relating to voting
intentions at a referendum rather than an election of by-election.
Notifying particulars
140. Subsection 110C(5) specifies the particulars that the notifying entity must
ensure are notified, in accordance with any requirements determined under subsection
321D(7) of the Electoral Act. As with the requirements for elections set out in
subsection 321D(5) of the Electoral Act, these requirements are set out in a table in
subsection 110C(5), and differ according to whether the communication:
is a type of printed matter specified in subparagraph 110C(1)(b)(i);
was authorised by a disclosure entity; and
was authorised by a natural person.
The way in which the requirements differ according to these factors is the same as in
elections, and is for the same reasons. These differences and reasons are set out in
paragraphs 63 to 75.
141. The requirement for the notifying entity to 'ensure' particulars are notified
allows for the possibility that they do not notify those particulars themselves in order
to meet their obligation.
Example 12: 'Ensure' particulars are notified
Humphrey Moore is the spokesperson of a group that has raised $500,000 for an upcoming
referendum. As the funds were raised with the express purpose of spending them on, and the
group expects to spend them all on, expressing the group's views on the referendum,
the group is a disclosure entity when it communicates referendum matter, or referendum
matter is communicated on their behalf. The day after the writ for the referendum is issued,
Humphrey is interviewed on his group's views on a local radio station. The interviewer
introduces Humphrey by saying:
I'm here with Humphrey Moore, the spokesperson for a Sydney group which has just
raised $500,000 for its referendum campaign. Humphrey, what can you tell us about
the upcoming referendum?
Humphrey has met most, but not all, of his obligation to notify particulars under
subsection 110C(5) as the interviewer has notified most of the particulars required of his
group's communications authorised by Humphrey. Humphrey does not need to repeat the
notifying particulars announced by the interviewer; by listening to the interviewer and
38
verifying that they have been notified, he has 'ensured' that they have been notified. However,
the interviewer did not notify the name of the disclosure entity (Humphrey's group's name),
as required by subparagraph 110C(5)(a)(i), so Humphrey needs to make sure either he or the
interviewer announces his group's name during the interview.
Subsection 110C(5) is a civil penalty provision
142. Subsection 110C(5) is a civil penalty provision which is enforceable under the
Regulatory Powers Act. A person who fails to notify the particulars, or notifies
incorrect particulars, contravenes this civil penalty provision. The relevant civil
penalty is 120 penalty units. The amount of the relevant penalty is calculated in
accordance with section 4AA of the Crimes Act 1914, and is commensurate with
similar Commonwealth regulatory regimes.
143. Subsection 110C(6) provides that for the purposes of the Referendum Act and
the Regulatory Powers Act, if a notifying entity that is not a legal entity fails to
comply with subsection 110C(5), then each senior officer (however described) of the
notifying entity is taken to fail to comply with that subsection. The effect of this
provision is that the senior officers of a collective of persons that is a notifying entity
under subsection 110C(5) but is not a legal entity, such as members of political parties
or interest groups, are taken to have failed to comply as individuals with the civil
penalty applicable to subsection 110C(5).
Section 110D
144. Section 110D provides for extended geographical application of section 110C.
This is intended to improve the ability to enforce alleged contraventions of the civil
penalty provision. The extended geographical application in subsection 110C(1) is
consistent with that provided for by subsection 15.2(1) of the Criminal Code
(extended geographical application -category B) which previously applied to the
authorisation requirements for internet advertisements in section 121A (repealed by
item 31), and applies to misleading and deceptive publications under section 122 of
the Referendum Act. The exception provided for by subsection 110D(2) is consistent
with the defence in subsection 15.2(2) of the Criminal Code.
Section 110E
145. Section 110E provides information-gathering powers to the Electoral
Commissioner. These powers are consistent with the information gathering powers
provided to the Electoral Commissioner under new section 321F of the Electoral Act
(see paragraph 65), but relate to information or a document that is relevant to
assessing compliance with section 110C rather than section 321D of the Electoral Act.
Section 110F
146. Section 110F provides powers for the Electoral Commissioner to inspect or
copy a document, and make and retain copies of, documents produced under section
110F. The Electoral Commissioner may retain possession of a copy of a document
produced in accordance with a requirement covered by paragraph 110E(2)(c).
39
Section 110G
147. Section 110G provides for the retention of documents. This section is
consistent with new section 321H of the Electoral Act (see paragraph 67), but relates
to documents produced under section 110E rather than 321F.
Item 31 - Sections 121, 121A and 124
148. This item repeals section 121 and 121A of the Referendum Act. Section 121
provided the authorisation requirements relating to the printing and publication of
referendum matter. Section 121A provided the authorisation requirements relating to
the publication of paid internet advertisements containing referendum matter. These
sections are superseded by the authorisation requirements under new section 110C.
149. This item also repeals section 124 which provided specific requirements for
headings in advertisements containing referendum matter in newspapers, magazines
and other periodicals. This section is superseded by the authorisation requirements
under new section 110C, which apply to all paid advertisements containing
referendum matter.
Item 32 - Before subsection 139(1)
Item 33 - Before subsection 139(2)
150. This item inserts headings to subsections 138 (1) and (2) to make it clear that
they concern restraining injunctions and performance injunctions respectively.
Item 34 - After subsection 139(2)
151. This item inserts a power for the Federal Court to grant an injunction
restraining a carriage service provider from supplying a listed carriage service to the
notifying entity in certain circumstances. The power is available if an injunction
could be granted under current subsections 139(1) or 139(2) of the Referendum Act in
relation to a contravention or proposed contravention of new section 110C
(authorisation of certain referendum matters) and the carriage service provider is
supplying, or is to supply, a listed carriage service to the notifying entity, and that
listed carriage service is to be used solely for the making of bulk voice calls (for
example, through the use of robocalls) or sending bulk text messages communicating
an electoral matter. The Electoral Commission can make an application to the Federal
Court for the grant of an injunction if these criteria are met.
152. The term solely indicates that the listed carriage service being used by the
notifying entity is only being used to make the bulk voice calls or send the bulk text
messages, as to apply the power in relation to a listed carriage service that is being
used for other purposes could give rise to safety or other issues (such as being unable
to contact essential services using the listed carriage service). The injunction can only
be granted in relation to the specific carriage service that is being supplied to the
notifying entity.
153. The item also inserts a power for the Federal Court to grant an injunction from
restraining a broadcaster from broadcasting the matter if an injunction could be
granted under current subsections 139(1) or 139(2) of the Referendum Act in relation
to a contravention or proposed contravention of new section 110C (authorisation of
40
certain referendum matters). The Electoral Commission can make an application to
the Federal Court for the grant of an injunction if these criteria are met.
154. This item also inserts a heading to subsection 139(3) to make it clear that it
concerns interim injunctions.
Item 35 - Subsection 139(3)
Item 36 - Subsection 139(3)
155. These items amend subsection 139(3) relating to interim injunctions, to allow
the Federal Court to grant an interim injunction restraining a carriage service provider
from supplying a listed carriage service or a broadcaster from broadcasting matter
pending the consideration and determination of an application made under new
subsection 139(2A) or (2B).
Item 37 - Before subsection 139(4)
Item 38 - Subsection 139(4)
156. These items insert a heading to subsection 139(4) to make it clear that it
provides for discharging and varying injunctions, and amend subsection 139(4) to
allow the Federal Court to discharge or vary any injunction made under section 139,
including the new injunctions relating to carriage service providers and broadcasters.
Item 39 - Before subsection 139(5)
Item 40 - Subsection 139(5)
Item 41 - Subsection 139(6)
157. Item 39 inserts a heading to subsection 139(5) to make it clear that it relates to
the consideration by the Federal Court of past and future conduct.
158. Item 40 amends subsection 139(5), which relates to the exercise of power by
the Federal Court to grant a restraining injunction and the extent to which past and
future conduct can be considered in exercising its power to grant an injunction. The
amendment limits the application of subsection 139(5) to subsection 139(1). This
makes it clear that subsection 139(5) is irrelevant to injunctions restraining carriage
service providers and broadcasters under new subsections 139(2A) and (2B).
159. Item 41 amends subsection 139(6), which relates to the exercise of power by
the Federal Court to grant an injunction requiring a person to do an act or thing, and
the extent to which past and future conduct can be considered in exercising its power
to grant an injunction. The amendment limits the application of 139(6) to subsections
139(1) and (2). This makes it clear that subsection 139(6) is irrelevant to injunctions
restraining carriage service providers and broadcasters under new subsections
139(2A) and (2B).
41
Item 42 - After subsection 139(6)
160. This item inserts a new subsection 139(6A) to provide the circumstances in
which the Federal Court may exercise its power to grant an injunction if an
application to the Court is made under new subsections 139(2A) or (2B). The Federal
Court may grant an injunction if it is satisfied that the notifying entity has contravened
section 110C or it appears that it is likely that the notifying entity will contravene
section 110C. It is the conduct of the notifying entity that is relevant, rather than the
conduct of the carriage service provider or broadcaster.
161. This item also inserts a heading above subsection 139(7) to make it clear that
this subsection provides that there is no requirement to give any undertakings as to
damages.
Item 43 - Before subsection 139(10)
162. This item inserts a heading to subsection 139(10) to make clear that the
section relates to section 139 not limiting other powers of the Federal Court.
Item 44 - At the end of section 139
163. This item inserts definitions of "broadcaster", "bulk text message", "bulk
voice call" for the purposes of section 139. These definitions are the same as those
used in items 1 and 3 relevant to the Electoral Act. Further explanation on these
definitions are at paragraphs 84 to 86.
Item 45 - After section 140
164. This item inserts new section 140AAA.
165. Subsection 140AAA(1) provides that new section 110C is enforceable under
Parts 4 and 6 of the Regulatory Powers Act. A note is inserted under subsection
140AAA(1) to indicate that Part 4 of the Regulatory Powers Act allows a civil penalty
provision to be enforced by obtaining an order for a person to pay a pecuniary penalty
for the contravention of the provision. The note also indicates that Part 6 of the
Regulatory Powers Act creates a framework for accepting and enforcing undertakings
relating to compliance with section 110C.
166. Subsection 140AAA(2) specifies that, in relation to section 110C:
the Electoral Commissioner is an authorised applicant for the purposes of
Part 4 of the Regulatory Powers Act. This allows the Electoral Commissioner
to apply to the Federal Court for an order that a person who is alleged to have
contravened section 110C pay the Commonwealth a pecuniary penalty.
the Electoral Commissioner is an authorised person for the purposes of Part 6
of the Regulatory Powers Act. This allows the Electoral Commissioner to
accept an undertaking relating to compliance with section 110C, which may be
enforced in the Federal Court.
the Federal Court of Australia is a relevant Court for the purposes of Parts 4
and 6 of the Regulatory Powers Act.
Item 46 - Section 140AA
42
167. This item repeals and substitutes section 140AA. This section relates to
evidence of authorship or authorisation of material, and ensures admissibility of
evidence to facilitate proof that a person named in an authorisation or the printer or
author of certain matter is connected with the material. The section is updated to
reflect the broader language of new section 110C which refers to communications of
referendum matter rather than referring to specific mediums, and to ensure that
applies to a contravention of the new civil penalty provision in that section as well as
offences.
43
Part 2--Amendments of broadcasting legislation
Australian Broadcasting Corporation Act 1983
Item 47 - Subsection 79A(2)
168. This item repeals the current subsection 79A(2) of the ABC Act and
substitutes a new subsection.
169. The current framework provides that if the Australian Broadcasting
Corporation (the ABC) broadcasts a political matter, it must cause the required
particulars to be announced (if broadcast by radio) or televised immediately after the
broadcast. It also sets out the method that the required particulars are to be broadcast
based on whether the matter was broadcast by radio or televised. If a matter is
broadcast by radio, the required particulars are to be announced. If a matter is
televised, the required particulars (with the exception of the name of every speaker)
must be announced and transmitted in the form of images of words.
170. The new subsection is similar to the current framework in that it requires the
ABC to ensure that required particulars are to be announced or televised, and sets out
the method in which they are to be announced or televised. However, there are some
differences to ensure consistency with similar provisions that are included in the
Electoral Act, the Referendum Act and other broadcasting legislation.
171. The new subsection includes a subheading before subsection 79A(2) to make
it clear that the subsection relates to announcing required particulars.
172. The new provision does not include the legislative requirement to announce or
televise the required particulars immediately after the broadcast. It will instead
require that, where the ABC broadcasts political matter at the request of another
person, the ABC must cause required particulars to be broadcast in accordance with
any requirement determined under subsection 321D(7) of the Electoral Act. When
making the legislative instrument under subsection 321D(7), the Electoral
Commissioner is required to consult with relevant stakeholders, including the ABC.
173. The omission of the requirement to broadcast required particulars immediately
after the political matter is intended to allow for flexibility for the Electoral
Commissioner to determine the appropriate time for the broadcasting of required
particulars without constraining it to immediately afterwards. This could include
immediately before the broadcast or during appropriate breaks. The determination
under subsection 321D(7) of the Electoral Act could include requirements relating to
the timing of the announcing or televising of required particulars.
The new provision retains the methods for the broadcasting of required particulars by
radio or television with two differences. The term 'ensure' is used instead of 'cause'
for consistency with the terminology of other like provisions to be included in the
Electoral Act, the Referendum Act and other broadcasting legislation. The omission
of the exception in relation to the name of every speaker delivering an address or
making a statement reflects that the new definition of required particulars does not
include this requirement.
44
174. A note is also included at the end of subsection 79A(2) to alert the reader to
the new deeming provision in subsection 76A(7) which is relevant in determining
whether the ABC has announced or televised the required particulars in accordance
with this Act.
175. The item also inserts a subheading at the end of subsection 79A(2) and before
subsection 79A(3) to make it clear that the subsection relates to keeping records by
the ABC.
Item 48 - Before subsection 79A(4)
176. This item inserts a subheading before subsection 79A(4) to make it clear that
the subsection sets out the meaning of "authorises".
Item 49 - Before subsection 79A(5)
177. This item inserts a subheading before subsection 79A(5) to make it clear that
the subsection contains definitions for the purposes of section 79A.
Item 50 - Subsection 79A(5)
178. This item inserts a definition of "disclosure entity" and provides that it has the
meaning given by section 321B of the Electoral Act, or paragraph (e) of the definition
of "disclosure entity" in section 110A of the Referendum Act.
179. It also inserts a definition of "relevant town or city", which mirrors the
definition used in the Electoral and Referendum Acts, but applies it to "political
matter", consistent with other provisions in the ABC Act. Thus, "relevant town or
city" in relation to an entity that authorised the communication of political matter
means different things depending on the situation of the entity. For an entity with a
principal office, "relevant town or city" means the town or city in which the office is
located. For an entity without a principal office, but with premises, "relevant town or
city" means the town or city in which the premises are located. For an entity with
neither a principal office nor premises, "relevant town or city" means the town or city
in which the natural person who was responsible for giving effect to the authorisation
lives.
180. These amendments are required as a consequence of the new definition of
"required particulars" which sets out different required particulars for a broadcast that
was authorised by a "disclosure entity" and for a broadcast that was authorised by an
entity that is not a "disclosure entity".
181. Relying on the definition of "disclosure entity" and adapting the definition of
"relevant town or city" that is included in the Electoral Act will ensure that the terms
are defined consistently across relevant legislation. The reference to the Referendum
Act is required to pick up the extra entity that is a disclosure entity under the
definition in that Act due to it being a referendum-specific disclosure entity.
Item 51 - Subsection 79A(5) (definition of required particulars)
182. This item repeals the current definition of "required particulars" and provides
that "required particulars" now has the meaning given in new subsection (6).
Item 52 - At the end of section 79A
45
183. This item inserts a new definition that will align with the notification
requirements in new subsection 321D(5) of the Electoral Act and new subsection
110C(5) of the Referendum Act, as well as the definition of "required particulars" in
other broadcasting legislation.
184. Under the ABC Act, the ABC is required to broadcast required particulars
when broadcasting a political matter at the request of another person. New section
321D of the Electoral Act will include a requirement for a notifying entity who
communicates an electoral matter to a person to ensure particulars to be notified.
New section 110C of the Referendum Act will insert a similar requirement in relation
to a notifying entity who communicates a referendum matter to a person.
185. An electoral or referendum matter under the Electoral Act or the Referendum
Act will also be a political matter for the purposes of the ABC Act. As such the
required particulars for the broadcast of 'political matter' must be consistent with the
'required particulars' for the communication of electoral matter in the Electoral Act to
ensure consistency.
186. Aligning the minimum requirements in this way will also avoid a situation
where an electoral or referendum matter that is broadcast by the ABC requires, in the
same broadcast, different particulars to be notified under, for example, the Electoral
Act or the Referendum Act, to those required to be broadcast under the ABC Act.
187. The new definition of "required particulars" sets out different required
particulars in a table at the end of subsection 79A(6). The "required particulars" differ
depending on whether or not the political matter was authorised by: a disclosure
entity; and a natural person.
188. If the broadcast was authorised by a disclosure entity that is not a natural
person, item 1 in the table accompanying the new definition provides that the required
particulars are:
the name of the entity as set out in the most recent return given in relation
to the entity under Part XX of the Electoral Act, where a return has been
provided;
the relevant town or city of the entity, as defined in new subsection
79A(5); and
the name of the natural person responsible for giving effect to the
authorisation.
189. If the broadcast was authorised by a disclosure entity that is a natural person,
item 2 in the table accompanying the new definition provides that the required
particulars are:
the name of the person who authorised the broadcast of the political
matter; and
the town or city in which the person lives.
190. If the broadcast was authorised by an entity that is neither a disclosure entity
nor a natural person, item 3 in the table accompanying the new definition provides
that the required particulars are:
46
the name of the entity that authorised the broadcast of the political matter;
and
the relevant town or city, as defined in new subsection 79A(5).
191. If the broadcast was authorised by an entity that is a natural person who is not
a disclosure entity, item 4 in the table accompanying the new definition provides that
the required particulars are:
the name of the entity that authorised the broadcast of the political matter;
and
the town or city in which the person lives.
192. Paragraph 79A(6)(b) provides that additional particulars can be prescribed in a
legislative instrument made under subsection 321D(7) of the Electoral Act. The power
to determine additional required particulars is to sit with the Electoral Commissioner
under new subsection 321D(7) of the Electoral Act to ensure that the required
particulars that are to be broadcast are consistent across legislation. When making a
determination under new subsection 321D(7), section 17 of the Legislation Act
requires the Electoral Commissioner to consult with relevant stakeholders, including
the ABC to ensure the content of the instrument is appropriate.
193. This item also inserts new subsection 79A(7).
194. New subsection 79A(7) provides that the ABC is taken to have ensured that
the required particulars to have been announced in relation to a political matter that it
broadcasts in particular circumstances. Those circumstances are that:
the particulars that were announced in relation to the matter for the
purposes of this Act;
those particulars purported to be the particulars referred to in items 3 or 4
of the table accompanying the definition of required particulars in
subsection 6; and
the ABC took steps which resulted in it being reasonable for it to rely on
the particulars that were provided for the purposes of this Act.
195. This provision is intended to protect the ABC where, for example, the person
requesting the broadcast advises the ABC that it is not authorised by a disclosure
entity and asserts the required particulars to be notified are those set out in items 3 or
4 of the table accompanying the definition of required particulars, and, after taking
reasonable steps, the ABC relies on that representation and so broadcasts.
196. This deeming provision is intended to make clear that the obligation to
determine whether the authorising person or body was a disclosure entity rests on the
person requesting the broadcast and the broadcaster is only expected to take
reasonable steps to satisfy itself that the authorising person does not meet the
definition of a disclosure entity. The requirement for reasonable steps to be taken
before relying on the information provided reflects the responsibility on the ABC
given its influential role in public debate.
197. Under subsection 79A(7), there is a non-exhaustive note that includes an
example of reasonable steps that may be taken by the ABC. The ABC may have
taken reasonable steps if they have notified the person wanting to broadcast political
47
matter that the notification requirements differ depending on whether the person is a
disclosure entity or not, and sought a verification from that person that the authorising
body was not a disclosure entity. It would also be reasonable for the broadcaster to
check the Australian Electoral Commission's website for publicly available
information on disclosure entities, including for the name of the entity.
48
Broadcasting Services Act 1992
Item 53 - Clause 1 of Schedule 2
198. This item inserts "(1)" before "In this Schedule" to allow for additional
subclauses to be inserted under clause 1 of schedule 2.
Item 54 - Clause 1 of Schedule 2
199. This item inserts a definition of "disclosure entity" and provides that it has the
meaning given by section 321B of the Electoral Act, or paragraph (e) of the definition
of "disclosure entity" in section 110A of the Referendum Act.
200. It also inserts a definition of "relevant town or city", which mirrors the
definition used in the Electoral and Referendum Acts, but applies it to "political
matter", consistent with other provisions in the Broadcasting Act. Thus, "relevant
town or city" in relation to an entity that authorised the communication of political
matter means different things depending on the situation of the entity. For an entity
with a principal office, "relevant town or city" means the town or city in which the
office is located. For an entity without a principal office, but with premises, "relevant
town or city" means the town or city in which the premises are located. For an entity
with neither a principal office nor premises, "relevant town or city" means the town or
city in which the natural person who was responsible for giving effect to the
authorisation lives.
201. These amendments are required as a consequence of the new definition of
"required particulars" which sets out different required particulars for a broadcast that
was authorised by a "disclosure entity" and for a broadcast that was authorised by an
entity that is not a "disclosure entity".
202. Relying on the definition of "disclosure entity" and adapting the definition of
"relevant town or city" that is included in the Electoral Act will ensure that the terms
are defined consistently across relevant legislation. The reference to the Referendum
Act is required to pick up the extra entity that is a disclosure entity under the
definition in that Act due to it being a referendum-specific disclosure entity.
Item 55 - Clause 1 of Schedule 2 (definition of required particulars)
203. This item repeals the current definition of "required particulars" and provides
that "required particulars" now has the meaning given in new subclause (2).
Item 56 - At the end of clause 1 of Schedule 2
204. This item inserts a new definition that will align with the notification
requirements in new subsection 321D(5) of the Electoral Act and new subsection
110C(5) of the Referendum Act, as well as the definition of "required particulars" in
other broadcasting legislation.
205. Under the Broadcasting Services Act, one of the standard conditions for a
broadcasting license is that broadcasters are required to broadcast required particulars
when broadcasting a political matter at the request of another person in accordance
with clause 4 of Schedule 2 to the Broadcasting Services Act. Subclause 4(1) of that
Schedule sets out the broadcasters that are subject to this standard condition.
49
206. New section 321D of the Electoral Act will include a requirement for a
notifying entity who communicates an electoral matter to a person to ensure
particulars to be notified. New section 110C of the Referendum Act will insert a
similar requirement in relation to a notifying entity who communications a
referendum matter to a person.
207. An electoral or referendum matter under the Electoral Act or the Referendum
Act will also be a political matter for the purposes of the Broadcasting Services Act.
As such, the required particulars for the broadcast of 'political matter' must be
consistent with the 'required particulars' for the communication of electoral matter in
the Electoral Act to ensure consistency.
208. Aligning the minimum requirements in this way will also avoid a situation
where an electoral or referendum matter that is broadcast by a broadcaster set out in
subclause 4(1) of the Broadcasting Services Act requires, in the same broadcast,
different particulars to be notified under the Electoral Act or the Referendum Act, to
those required to be broadcast under the Broadcasting Services Act.
209. The new definition of "required particulars" sets out different required
particulars in a table at the end of subclause 1(2). The "required particulars" differ
depending on whether or not the political matter was authorised by: a disclosure
entity; and a natural person.
210. If the broadcast was authorised by a disclosure entity that is not a natural
person, item 1 in the table accompanying the new definition provides that the required
particulars are:
the name of the entity as set out in the most recent return given in relation
to the entity under Part XX of the Electoral Act, where a return has been
provided;
the relevant town or city of the entity, as defined in new clause 1 of
schedule 2; and
the name of the natural person responsible for giving effect to the
authorisation.
211. If the broadcast was authorised by a disclosure entity that is a natural person,
item 2 in the table accompanying the new definition provides that the required
particulars are:
the name of the person who authorised the broadcast of the political
matter; and
the town or city in which the person lives.
212. If the broadcast was authorised by an entity that is neither a disclosure entity
nor a natural person, item 3 in the table accompanying the new definition provides
that the required particulars are:
the name of the entity that authorised the broadcast of the political matter;
and
the relevant town or city, as defined in new clause 1 of schedule 2.
50
213. If the broadcast was authorised by an entity that is a natural person who is not
a disclosure entity, item 4 in the table accompanying the new definition provides that
the required particulars are:
the name of the entity that authorised the broadcast of the political matter;
and
the town or city in which the person lives.
214. Subclause 1(2)(b) of schedule 2 provides that additional particulars can be
prescribed in a legislative instrument made under subsection 321D(7) of the Electoral
Act. The power to determine additional required particulars is to sit with the Electoral
Commissioner under new subsection 321D(7) of the Electoral Act to ensure that the
required particulars that are to be broadcast are consistent across legislation. When
making a determination under new subsection 321D(7), section 17 of the Legislation
Act requires the Electoral Commissioner to consult with relevant stakeholders,
including the ACMA to ensure the content of the instrument is appropriate.
Item 57 - Before subclause 4(1) of Schedule 2
215. Consistent with contemporary drafting practice this item inserts a subheading
before subclause 4(1) of Schedule 2 to make it clear that the subclause sets out the
meaning of "broadcaster".
Item 58 - Subclause 4(2) of Schedule 2
216. This item repeals current subclause 4(2) of Schedule 2 which requires a
broadcaster to cause the required particulars in relation to a political matter that it has
broadcast at the request of another person to be announced, immediately afterwards,
in a form approved in writing by the ACMA.
217. In its place, the item inserts a new subclause 4(2) that requires a broadcaster
who broadcasts political matter at the request of another person to ensure the required
particulars to be broadcast as required by any instrument made under new
subsection 321D(7) of the Electoral Act.
218. The amendment is intended to provide flexibility for the Electoral
Commissioner to determine the appropriate time for the broadcasting of required
particulars. This could include immediately before the broadcast or during
appropriate breaks. The determination under subsection 321D(7) of the Electoral Act
could include requirements relating to the timing of the broadcast of required
particulars.
219. The term 'ensure' is used instead of 'cause' for consistency with the
terminology of other like provisions to be included in the Electoral Act, the
Referendum Act and other broadcasting legislation.
220. A note is also included at the end of subclause 4(2) of Schedule 2 to alert the
reader to the new deeming provision in subclause 4(5) which is relevant in
determining whether the broadcaster has broadcast the required particulars in
accordance with this Act.
51
221. The item also inserts a subheading at the end of subclause 4(2) of Schedule 2
and before subclause 4(3) to make it clear that the subclause relates to keeping records
by broadcasters.
Item 59 - Before subclause 4(4) of Schedule 2
222. This item inserts a subheading before subclause 4(4) of Schedule 2 to make it
clear that the subsection sets out the meaning of "authorises".
Item 60 - At the end of clause 4 of Schedule 2
223. This item inserts a new subclause 4(5) of Schedule 2 to the Broadcasting
Services Act.
224. New subclause 4(5) provides that a broadcaster is taken to have ensured the
required particulars to have been announced in relation to a political matter that it
broadcasts in particular circumstances. Those circumstances are that:
the particulars that were announced in relation to the matter for the
purposes of the Broadcasting Services Act;
those particulars purported to be the particulars referred to in items 3 or 4
of the table in subclause 1(2); and
the broadcaster took steps which resulted in it being reasonable for it to
rely on the particulars that were provided for the purposes of this Act.
225. This provision is intended to protect the broadcaster where, for example, the
person requesting the broadcast advises the broadcaster that it was not authorised by a
disclosure entity and asserts the required particulars to be notified are those set out in
paragraph (b) of the definition of "required particulars", and, after taking reasonable
steps, the broadcaster relies on that representation and so broadcasts.
226. This deeming provision is intended to make clear that the obligation to
determine whether the authorising person or body was a disclosure entity rests on the
person requesting the broadcast and the broadcaster is only expected to take
reasonable steps to satisfy itself that the authorising person does not meet the
definition of a disclosure entity. The requirement for reasonable steps to be taken
before relying on the information provided reflects the responsibility on broadcasters
given their influential role in public debate.
227. Under subclause 4(5), there is a non-exhaustive note that includes an example
of reasonable steps that may be taken by the broadcaster. The broadcaster may have
taken reasonable steps if they have notified the person wanting to broadcast political
matter that the notification requirements differ depending on whether the person is a
disclosure entity or not, and sought a verification from that person that the authorising
body was not a disclosure entity. It would also be reasonable for the broadcaster to
check the Australian Electoral Commission's website for publicly available
information on disclosure entities, including for the name of the entity.
52
Parliamentary Proceedings Broadcasting Act 1946
Item 61 - Section 16 (heading)
228. This item repeals the current heading and inserts a new heading before section
16 of the Parliamentary Proceedings Broadcasting Act 1946 of 'Broadcasting
obligations inapplicable'.
229. This amendment reflects that broadcasting obligations are no longer confined
to the ABC Act, the Broadcasting Services Act and the SBS Act, but that obligations
are now included in the Electoral Act and the Referendum Act.
Item 62 - Section 16
230. This item inserts a reference to the new section 321D of the Electoral Act and
new section 110C of the Referendum Act which contain obligations for an authorising
entity to ensure particulars to be notified when they are communicating to a person an
electoral or referendum matter.
231. The effect of this amendment is that the ABC is not required to comply with
the new section 321D of the Electoral Act or new section 110C of the Referendum
Act when broadcasting, or re-broadcasting any proceedings of either House of
Parliament or of a joint sitting.
53
Special Broadcasting Service Act 1991
Item 63 - Subsection 70A(2)
232. This item repeals the current subsection 70A(2) of the SBS Act and substitutes
a new subsection.
233. The current framework provides that if the Special Broadcasting Service
Corporation (the SBS) broadcasts a political matter, it must cause the required
particulars to be announced (if broadcast by radio) or televised immediately after the
broadcast. It also sets out the method that the required particulars are to be broadcast
based on whether the matter was broadcast by radio or televised. If a matter is
broadcast by radio, the required particulars are to be announced. If a matter is
televised, the required particulars (with the exception of the name of every speaker)
must be announced and transmitted in the form of images of words.
234. The new subsection is similar to the current framework in that it requires the
SBS to ensure that required particulars are to be announced or televised, and sets out
the method in which they are to be announced or televised. However, there are some
differences to ensure consistency with similar provisions that are included in the
Electoral Act, the Referendum Act and other broadcasting legislation.
235. The new subsection includes a subheading before subsection 70A(2) to make
it clear that the subsection relates to announcing required particulars.
236. The new provision does not include the legislative requirement to announce or
televise the required particulars immediately after the broadcast. It will instead
require that, where the SBS broadcasts political matter at the request of another
person, the SBS must ensure that the required particulars are to be broadcast in
accordance with any requirement determined under subsection 321D(7) of the
Electoral Act. When making the legislative instrument under subsection 321D(7), the
Electoral Commissioner is required to consult with relevant stakeholders, including
the SBS.
237. The omission of the requirement to broadcast required particulars immediately
after the political matter is intended to allow for flexibility for the Electoral
Commissioner to determine the appropriate time for the broadcasting of required
particulars without constraining it to immediately afterwards. This could include
immediately before the broadcast or during appropriate breaks. The determination
under subsection 321D(7) of the Electoral Act could include requirements relating to
the timing of the announcing or televising of required particulars.
238. The new provision retains the methods for the broadcasting of required
particulars by radio or television with two differences. The term 'ensure' is used
instead of 'cause' for consistency with the terminology of other like provisions to be
included in the Electoral Act, the Referendum Act and other broadcasting legislation.
The omission of the exception in relation to the name of every speaker delivering an
address or making a statement reflects that the new definition of required particulars
does not include this requirement.
239. A note is also included at the end of subsection 70A(2) to alert the reader to
the new deeming provision in subsection 70A(6) which is relevant in determining
54
whether the SBS has announced or televised the required particulars in accordance
with this Act.
240. The item also inserts a subheading at the end of subsection 70A(2) and before
subsection 70A(3) to make it clear that the subsection relates to keeping records by
the SBS.
Item 64 - Before subsection 70A(4)
241. This item inserts a subheading before subsection 70A(4) to make it clear that
the subsection sets out the meaning of "authorises".
Item 65 - Before subsection 70A(5)
242. This item inserts a subheading before subsection 70A(5) to make it clear that
the subsection contains definitions for the purposes of section 70A.
Item 66 - Subsection 70A(5)
243. This item inserts a definition of "disclosure entity" and provides that it has the
meaning given by section 321B of the Electoral Act, or paragraph (e) of the definition
of "disclosure entity" in section 110A of the Referendum Act.
244. It also inserts a definition of "relevant town or city", which mirrors the
definition used in the Electoral and Referendum Acts, but applies it to "political
matter", consistent with other provisions in the SBS Act. Thus, "relevant town or
city" in relation to an entity that authorised the communication of political matter
means different things depending on the situation of the entity. For an entity with a
principal office, "relevant town or city" means the town or city in which the office is
located. For an entity without a principal office, but with premises, "relevant town or
city" means the town or city in which the premises are located. For an entity with
neither a principal office nor premises, "relevant town or city" means the town or city
in which the natural person who was responsible for giving effect to the authorisation
lives.
245. These amendments are required as a consequence of the new definition of
"required particulars" which sets out different required particulars for a broadcast that
was authorised by a "disclosure entity" and for a broadcast that was authorised by an
entity that is not a "disclosure entity".
246. Relying on the definition of "disclosure entity" and adapting the definition of
"relevant town or city" that is included in the Electoral Act will ensure that the terms
are defined consistently across relevant legislation. The reference to the Referendum
Act is required to pick up the extra entity that is a disclosure entity under the
definition in that Act due to it being a referendum-specific disclosure entity.
55
Item 67 - Subsection 70A(5) (definition of required particulars)
247. This item repeals the current definition of "required particulars" and provides
that "required particulars" now has the meaning given in new subsection (6).
Item 68 - At the end of section 70A
248. This item inserts a new definition that will align with the notification
requirements in new subsection 321D(5) of the Electoral Act and new subsection
110C(5) of the Referendum Act, as well as the definition of "required particulars" in
other broadcasting legislation.
249. Under the SBS Act, the SBS is required to broadcast required particulars when
broadcasting a political matter at the request of another person. New section 321D of
the Electoral Act will include a requirement for a notifying entity who communicates
an electoral matter to a person to ensure particulars to be notified. New section 110C
of the Referendum Act will insert a similar requirement in relation to a notifying
entity who communicates a referendum matter to a person.
250. An electoral or referendum matter under the Electoral Act or the Referendum
Act will also be a political matter for the purposes of the SBS Act. As such the
required particulars for the broadcast of 'political matter' must be consistent with the
'required particulars' for the communication of electoral matter in the Electoral Act to
ensure consistency.
251. Aligning the minimum requirements in this way will also avoid a situation
where an electoral or referendum matter that is broadcast by the SBS requires, in the
same broadcast, different particulars to be notified under, for example, the Electoral
Act or the Referendum Act, to those required to be broadcast under the SBS Act.
252. If the broadcast was authorised by a disclosure entity that is not a natural
person, item 1 in the table accompanying the new definition provides that the required
particulars are:
the name of the entity as set out in the most recent return given in relation
to the entity under Part XX of the Electoral Act, where a return has been
provided;
the relevant town or city of the entity, as defined in new subsection
70A(5); and
the name of the natural person responsible for giving effect to the
authorisation.
253. If the broadcast was authorised by a disclosure entity that is a natural person,
item 2 in the table accompanying the new definition provides that the required
particulars are:
the name of the person who authorised the broadcast of the political
matter; and
the town or city in which the person lives.
56
254. If the broadcast was authorised by an entity that is neither a disclosure entity
nor a natural person, item 3 in the table accompanying the new definition provides
that the required particulars are:
the name of the entity that authorised the broadcast of the political matter;
and
the relevant town or city, as defined in new subsection 70A(5).
255. If the broadcast was authorised by an entity that is a natural person who is not
a disclosure entity, item 4 in the table accompanying the new definition provides that
the required particulars are:
the name of the entity that authorised the broadcast of the political matter;
and
the town or city in which the person lives.
256. Paragraph 70A(6)(b) provides that additional particulars can be prescribed in a
legislative instrument made under subsection 321D(7) of the Electoral Act. The power
to determine additional required particulars is to sit with the Electoral Commissioner
under new subsection 321D(7) of the Electoral Act to ensure that the required
particulars that are to be broadcast are consistent across legislation. When making a
determination under new subsection 321D(7), section 17 of the Legislation Act
requires the Electoral Commissioner to consult with relevant stakeholders, including
the SBS, to ensure the content of the instrument is appropriate.
257. New subsection 70A(7) provides that the SBS is taken to have ensured that the
required particulars to have been announced in relation to a political matter that it
broadcasts in particular circumstances. Those circumstances are that:
the particulars that were announced in relation to the matter for the
purposes of this Act;
those particulars purported to be the particulars referred to in items 3 or 4
of the table accompanying the definition of required particulars in
subsection 6; and
the SBS took steps which resulted in it being reasonable for it to rely on
the particulars that were provided for the purposes of this Act.
258. This provision is intended to protect the SBS where, for example, the person
requesting the broadcast advises the SBS that it is not authorised by a disclosure entity
and asserts the required particulars to be notified are those set out in paragraph (b) of
the definition of required particulars, and, after taking reasonable steps, the SBS relies
on that representation and so broadcasts.
259. This deeming provision is intended to make clear that the obligation to
determine whether the authorising person or body was a disclosure entity rests on the
person requesting the broadcast and the broadcaster is only expected to take
reasonable steps to satisfy itself that the authorising person does not meet the
definition of a disclosure entity. The requirement for reasonable steps to be taken
before relying on the information provided reflects the responsibility on the SBS
given its influential role in public debate.
57
260. Under subsection 70A(6), there is a non-exhaustive note that includes an
example of reasonable steps that may be taken by the SBS. The SBS may have taken
reasonable steps if they have notified the person wanting to broadcast political matter
that the notification requirements differ depending on whether the person is a
disclosure entity or not, and sought a verification from that person that the authorising
body was not a disclosure entity. It would also be reasonable for the broadcaster to
check the Australian Electoral Commission's website for publicly available
information on disclosure entities, including for the name of the entity.
58
Schedule 2 - Impersonating a Commonwealth body
Criminal Code Act 1995
Item 1 - Part 7.8 (heading) of the Criminal Code
261. This item is a consequential amendment that repeals the current heading for
Part 7.8 and replaces it with a new heading - 'Causing harm to or obstructing
Commonwealth public officials and impersonating Commonwealth public officials or
bodies'.
Item 2 - At the end of Part 7.8 of the Criminal Code
262. This item inserts a new Division 150 into Part 7.8 of the Criminal Code.
Division 150 will contain new offences to criminalise false representations in relation
to a Commonwealth body.
263. New subsection 150.1(1) creates an offence where a person engages in
conduct that results in, or is reasonably capable of resulting in, a false representation
that the person is a Commonwealth body, or is acting on behalf of, or with the
authority of, a Commonwealth body. The maximum penalty for this offence is two
years' imprisonment, which mirrors the penalty for the current basic offences of
impersonating a Commonwealth public official in subsections 148.1(1) and (2) of the
Criminal Code.
264. Pursuant to this offence, a person must be reckless as to whether their conduct
will result in, or is reasonably capable of resulting in, a false representation. This
threshold of recklessness applies to both the result (i.e., a representation that the
person is a Commonwealth body, or is acting on behalf of, or with the authority of, a
Commonwealth body) and the circumstance (i.e., the person in fact not being the
Commonwealth body, or acting on behalf of, or with the authority of, the
Commonwealth body).
265. This threshold captures conduct where a person does not necessarily intend to
create the relevant representation, or does not necessarily believe the circumstance to
be false, but where they are aware that there is a substantial risk that such a
representation will occur, or that the circumstance is false, and it is unjustifiable for
them to take that risk. This threshold is necessary to ensure the offence covers false
representations that, whilst not intentional, are equally capable of undermining public
confidence in the integrity and authority of the Australian Government and are made
in circumstances where the accused is aware of a substantial risk of misrepresentation.
These fault elements for result and circumstance mirror the elements for the current
offences of impersonating a Commonwealth public official in section 148.1 of the
Criminal Code.
266. This offence applies to a 'person', which includes both natural and legal
persons. This offence relies on the definition of a 'Commonwealth body', which is set
out in new subsection 150.1(7).
267. For the purposes of this offence, relevant conduct may include, but is not
limited to:
59
writing of a letter on the letterhead (or purported letterhead) of a
Commonwealth body
sending an electronic communication (including an email or text message)
imputed to be from or on behalf of a Commonwealth body
taking out an advertisement in the name of a Commonwealth body, or
issuing of a publication in the name of a Commonwealth body.
268. New subsection 150.1(2) creates an aggravated offence where a person falsely
represents that the person is a Commonwealth body, or acts on behalf of, or with the
authority of, a Commonwealth body, with the intention of obtaining a gain, causing a
loss, or influencing the exercise of a public duty or function. The maximum penalty
for this offence is five years' imprisonment, which mirrors the penalty for the current
aggravated offences of impersonating a Commonwealth public official in subsections
148.1(3) and 148.2(3) of the Criminal Code.
269. As with the primary offence, a person must be reckless as to whether their
conduct will result in, or is reasonably capable of resulting in, a false representation.
Again, this threshold of recklessness applies to both the 'result' (i.e., a representation
that the person is a Commonwealth body, or is acting on behalf of, or with the
authority of, a Commonwealth body) and the 'circumstance' (i.e., the person in fact
not being the Commonwealth body, or acting on behalf of, or with the authority of,
the Commonwealth body). The rationale for applying recklessness to these elements
of the aggravated offence is the same as is stated in respect of the primary offence.
270. The elements of the aggravated offence mirror those of the current aggravated
offences of impersonating a Commonwealth public official in subsections 148.1(3)
and 148.2(3).
271. The terms 'obtaining', 'gain', and 'loss' are defined in section 130.1 of the
Criminal Code.
272. The phrase 'influencing the exercise of a public duty or function' in
sub-paragraph 150.1(2)(c)(iii) is not intended to incorporate the definition of 'duty' in
section 130.1. This is because the phrase 'influencing the exercise of a public duty or
function' in sub-paragraph 150.1(2)(c)(iii) is not limited on its face to being 'in
relation to a person who is a Commonwealth public official' or 'in relation to a person
who is a public official'. Rather, the phrase 'public duty or function' should be
interpreted according to its ordinary and natural meaning.
273. Consistent with its ordinary and natural meaning, the phrase 'public duty or
function' is not intended to apply to so-called 'civic duties' of private citizens, such as
voting.
274. This offence applies to a 'person', which includes both natural and legal
persons. This offence relies on the definition of a 'Commonwealth body' in new
subsection 150.1(7).
275. For the purposes of these offences, relevant conduct may include, but is not
limited to:
writing of a letter on the letterhead (or purported letterhead) of a
Commonwealth body
60
sending an electronic communication (including an email or text message)
imputed to be from or on behalf of a Commonwealth body
taking out an advertisement in the name of a Commonwealth body, or
issuing of a publication in the name of a Commonwealth body.
276. New subsection 150.1(3) provides that, for the purposes of new section 150.1,
it is immaterial whether the Commonwealth body exists or is fictitious. Provided a
person makes a false representation in relation to a Commonwealth body, it is not
necessary that the specific body they purport to represent be actually in existence.
277. For example, conduct amounting to a person falsely representing themselves
to be, or to be acting on behalf of, or with the authority of, the fictional
Commonwealth Department of Alcohol and Fisheries or Ministry of Internal Security,
could be criminalised under the new offences in section 150.1.
278. New subsection 150.1(4) provides that if the Commonwealth body is
fictitious, the offences under subsections (1) and (2) do not apply unless a person
would reasonably believe that the Commonwealth body exists.
279. This provision is intended to ensure that the offences only apply in
circumstances where the Commonwealth body referred to, although fictitious, is
reasonably capable of being believed to be a real Commonwealth body. This
provision is intended to exclude application of the offences where the fictional body
referred to is clearly not capable of being a real Commonwealth body.
280. For example, the offences would not apply if a person falsely represented
themselves to be, or to be acting on behalf of, or with the authority of, the fictional
Ministry of Silly Walks, the Australian Government Hot Dog Authority or the
Commonwealth Fund for Jane's New Car, on the basis that a reasonable person would
not believe such Commonwealth bodies exist.
281. However, the offences will apply to conduct amounting to falsely representing
oneself to be, or to be acting on behalf of, or with the authority of, a fictitious
Commonwealth body where a person would reasonably believe such a body exists,
for example the Commonwealth Department of Alcohol and Fisheries or the Ministry
of Internal Security.
282. New subsection 150.1(5) provides that new section 150.1 does not apply to the
extent (if any) that it would infringe any constitutional doctrine of implied freedom of
political communication. This section is not intended to limit the operation of section
15A of the Acts Interpretation Act 1901.
283. New subsection 150.1(6) applies extended geographical jurisdiction (category
C) to the offences created by new section 150.1. This means that offences relating to
the impersonation of a Commonwealth body will apply whether or not the conduct or
the result of the conduct constituting the alleged offence occurs in Australia.
However, a defence may be available if there is no equivalent offence under the law
of a foreign country where the conduct occurs. This defence does not apply if the
person charged is of Australian nationality.
61
284. This extension of geographical jurisdiction is consistent with the approach
taken under existing offences of impersonating a Commonwealth public official in
section 148.1 of the Criminal Code.
285. New subsection 150.1(7) inserts a new definition of 'Commonwealth body'
that applies to the offences under new section 150.1. This item also introduces a new
definition of 'conduct' that applies to the offences under section 150.1.
286. The new subsection provides that a 'Commonwealth body' means a
Commonwealth entity; or a Commonwealth company within the meaning of the
Public Governance, Performance and Accountability Act 2013; or a service, benefit,
program or facility provided by or on behalf of the Commonwealth.
287. According to the Dictionary to the Criminal Code, a Commonwealth entity
means the Commonwealth and a Commonwealth authority, which includes a body
established by or under a law of the Commonwealth (with certain exceptions specified
in the definition). 'Commonwealth' means all parts of the Commonwealth, including
departments of state and other non-corporate Commonwealth entities.
288. A Commonwealth company within the meaning of the Public Governance,
Performance and Accountability Act 2013 means a Corporations Act 2001 company
that the Commonwealth controls. It does not include subsidiary companies. Some
examples of a Commonwealth company are NBN Co Limited and Aboriginal Hostels
Limited.
289. Paragraph 150.1(7)(c) is intended to be interpreted broadly as any service,
benefit, program or facility for some or all members of the public that is provided by
the Commonwealth, whether under a law of the Commonwealth or otherwise. The
terms 'service', 'benefit', 'program', or 'facility' are intended to have their ordinary
and natural meaning. Some examples of a Commonwealth service are Centrelink and
Medicare.
290. This item also stipulates that, for the purposes of new section 150.1, the term
'conduct' does not include conduct engaged in solely for genuine satirical, academic
or artistic purposes.
62