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2022-2023-2024
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ELECTORAL LEGISLATION AMENDMENT (ELECTORAL
COMMUNICATIONS) BILL 2024
EXPLANATORY MEMORANDUM
(Circulated by the authority of Senator the Hon Don Farrell, Special Minister of State)
Glossary
The following abbreviations and acronyms are used throughout this Explanatory
Memorandum:
Abbreviation Definition
Acts Interpretation Act Acts Interpretation Act 1901
Administrative Decisions (Judicial
ADJR Act
Review) Act 1977
AEC Australian Electoral Commission
AI Artificial Intelligence
Electoral Legislation Amendment
Bill
(Electoral Communications) Bill 2024
BSA Broadcasting Services Act 1992
A group of three or more members
Decision Panel selected from the Electoral
Communications Panel
Electoral Act Commonwealth Electoral Act 1918
International Covenant on Civil and
ICCPR
Political Rights
Item Refers to an Item in the Bill
Joint Standing Committee on Electoral
JSCEM
Matters
Public Governance, Performance and
PGPA Act
Accountability Act 2013
Referendum (Machinery Provisions) Act
Referendum Act
1984
Regulatory Powers (Standard
Regulatory Powers Act
Provisions) Act 2014
SBS Act Special Broadcasting Services Act 1991
2
ELECTORAL LEGISLATION AMENDMENT (ELECTORAL
COMMUNICATIONS) BILL 2024
GENERAL OUTLINE
This Bill makes amendments to the Electoral Act and Referendum Act to prevent the
distortion of electoral choice by inaccurate and misleading electoral matter. The Bill
establishes new civil penalty provisions to prohibit authorising certain electoral and
referendum matter that is inaccurate and misleading to a material extent, including
material that has been modified using technology such as 'deepfakes'.
'Deepfakes' refer to edited images, videos or sound files of a person that have been
generated by AI to create an extremely realistic but false depiction of the person doing
or saying something that they did not actually do or say.
The impact on our electoral system from the global challenges of AI, foreign
interference, misinformation and disinformation underpins the need for all Australian
voters to access information they can trust. It is essential that voters can distinguish
reliable information sources and scrutinise material to determine what is factual when
forming a decision about how to exercise their franchise.
This Bill delivers on recommendations 11 and 12 of JSCEM's Interim Report into the
Conduct of the 2022 federal election and other matters, to introduce truth in political
advertising laws to be administered by the AEC, giving consideration to provisions in
the Electoral Act 1985 (SA). The Bill also implements commitment 7 of Australia's
Third Open Government Partnership National Action Plan 2024-2025, in relation to
truth in political advertising, and is consistent with recommendations of the Senate
Select Committee on Adopting Artificial Intelligence (AI) Interim Report,
implementing a credentialling of AI-generated content ahead of the next federal
election.
Overview of the Bill
Schedule 1--Amendments to the Electoral Act
Schedule 1 amends the Electoral Act to:
• prohibit a person or entity authorising certain electoral matter that contains:
▪ a written statement purporting to be factual but which is inaccurate and
misleading to a material extent; or
▪ a visual depiction purporting to be a factual visual depiction of a candidate
for an election that is inaccurate and misleading to a material extent; or
▪ an audio depiction purporting to be a factual audio statement by a candidate
for an election that is inaccurate and misleading to a material extent;
• establish an Electoral Communications Panel as an independent secondary
statutory structure within the AEC;
• require a person or entity who authorises electoral matter to disclose whether the
content was substantially or entirely created or modified using digital technology
as part of the authorisation particulars, to be administered by the AEC; and
• update key definitions and terminology.
3
Schedule 2--Amendments to the Referendum Act
Schedule 2 amends the Referendum Act to:
• prohibit a person or entity authorising certain referendum matter that contains a
written statement that is inaccurate and misleading to a material extent;
• extend the functions of the Electoral Communications Panel to the referendum
context;
• require a person or entity who authorises referendum matter to disclose whether
the content was substantially or entirely created or modified using digital
technology as part of the authorisation particulars, to be administered by the
AEC; and
• update key definitions and terminology.
Schedule 3--Other amendments
Schedule 3 amends the BSA and the SBS Act to repeal the requirements for licensed
broadcasters and the SBS to not broadcast election or referendum advertising in the
last three days of voting in an election or referendum.
These amendments will permit such matter to be broadcast in the final days before
polling day for an election or referendum, and thereby apply commensurate treatment
to those broadcasters as applies to other media services.
Schedule 4--Transitional Rules
Schedule 4 enables the Minister to make a legislative instrument prescribing matters
of a transitional, application or saving nature relating to amendments made by this
Bill.
Financial Impact
In the context of the AEC's constitutional and legal obligations to undertake and
administer elections, it is not possible to accurately estimate the total cost of any
election in advance. Once true costs are known, the AEC will be in a position to work
with the Department of Finance to finalise the financial implications of the measures
in this Bill.
4
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Electoral Legislation Amendment (Electoral Communications) Bill 2024
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
This Bill amends the Electoral Act and Referendum Act to prohibit the authorisation
of certain electoral matter that is inaccurate and misleading to a material extent during
electoral and referendum periods if the matter contains:
• written statements that are inaccurate and misleading to a material extent; or
• visual or audio depictions of candidates that purport to be factual, including
created or modified using digital technology, but are inaccurate and misleading to
a material extent.
Election advertisements and certain promotional materials like pamphlets and how-to-
vote cards will be subject to the new civil penalty provisions. There are a number of
exceptions to the provisions to protect genuine political debate and expression
including, statements of opinion; academic, educative, satirical or artistic
communications; professional news media and private or parliamentary
communications.
The Bill also amends the Electoral Act to establish a Panel as a secondary statutory
structure within the AEC, for the purpose of administering the civil penalty provisions
in Division 2. The Panel's decisions are subject to judicial review and are enforceable
by the Federal Court of Australia.
The Bill will also require electoral matter and referendum matter that has been
substantially or entirely created or modified using digital technology (including AI) to
carry a statement to that effect.
Human rights implications
1. This Bill engages the following rights under the ICCPR:
• the right to protection against arbitrary or unlawful attacks on reputation
under Article 17 of the ICCPR;
• the right to freedom of expression under Article 19 of the ICCPR; and
• the right to take part in the conduct of public affairs and elections under
Article 25 of the ICCPR.
Right to protection against attacks on reputation under Article 17 of the ICCPR
2. Article 17 of the ICCPR states that no one shall be subjected to arbitrary or
unlawful attacks on their honour and reputation.
5
Publishing decisions of the Electoral Communications Panel
3. The Bill engages Article 17 because it requires the Panel to publish its decisions
on whether the Panel is of the view that a person has authorised an electoral
advertisement or promotional item containing matter that is inaccurate and
misleading to a material extent. A decision that a person has authorised such
material could potentially harm that person's reputation.
4. The right to protection of reputation may be subject to certain restrictions, where
such restrictions are necessary and proportionate to achieving a legitimate
objective.
5. The Bill makes it unlawful to approve certain authorisable electoral matter
containing an inaccurate and misleading written statement, or a visual or audio
depiction of a candidate, that purports to be factual but which is inaccurate and
misleading to a material extent. The creation and communication of such material
can cause serious reputational harm, particularly during an election period when
the candidate has a heightened public profile. In this way, the objective of the
Bill is legitimate and seeks to enhance, not diminish, the protection against
arbitrary or unlawful attacks on honour and reputation.
6. Written statements, as well as visual and audio depictions of candidates for
election, that purport to be factual but are inaccurate and misleading to a material
extent represent a particular threat to the rights and reputations of others -- both
the right to protection from unlawful attacks on a person's reputation, and the
right to take part in the conduct of public affairs through seeking election. These
rights are at greater risk of being threatened the closer in proximity to the election
the inaccurate and misleading electoral matter is communicated. This is the
period when a considerable proportion of Australians decide how to vote or
consider changing their voting intention.
7. The Panel will have mechanisms to enforce its decisions and limit the damage to
the candidate's reputation. The Panel will be able to request that the authoriser of
the content either publish a retraction, correct the content of the matter, or take
down the content. If the person fails to comply with the request, the Decision
Panel may apply to the Federal Court for enforcement.
8. Publishing Panel decisions publicly will ensure transparency by providing an
authoritative source for those impacted by misleading and inaccurate statements
to clear their reputation.
9. Decisions of the Panel will be considered and informed. Before reaching a
decision, the Panel must conduct an investigation in accordance with the
statutory framework, and the Panel is empowered to seek information. Any
decision reached will be subject to judicial review and be enforceable only by the
courts.
10. The extent of any burden on the protection against arbitrary or unlawful
interference with reputation is therefore reasonable, necessary, and proportionate
to the protection of other rights.
6
Disclosure of digital-technology in the creation of electoral matter
11. The requirement for electoral matter and referendum matter to disclose when it
has been entirely or substantially or entirely created or modified using digital
technology (including AI) does not burden the right to protection against attacks
on reputation.
Right to freedom of opinion and expression under Article 19 of the ICCPR
12. Article 19(2) of the ICCPR states that everyone shall have the right to freedom of
expression, including the freedom to impart information and ideas of all kinds
either orally, in writing, in print or through any other media of their choice.
13. Article 19(3) of the ICCPR provides that this right may be limited as provided for
by law and when necessary to protect the rights or reputations of others, national
security, public order, or public health or morals. These limitations must be
prescribed by law and necessary to achieve the desired purpose and proportionate
to the need on which the limitation is predicated.
Prohibition on authorising materially inaccurate and misleading electoral matter
14. The Bill engages the right to freedom of expression as it restricts the ability of
persons to authorise certain electoral matter that is misleading and inaccurate to a
material extent. However, these provisions are calibrated to safeguard
representative democracy without unduly interfering with the right to political
expression. The Bill applies to specific circumstances and includes exceptions to
ensure that this limitation is necessary, proportionate, and targeted.
15. The Bill does not regulate the expression of any statement unless it is contained
in authorisable campaign material. The Bill does not prohibit the communication
of any opinion, satire, news, art, education material, or academic content, any
private communications for personal purposes, any matter communicated outside
of the federal election or referendum period, or any content unrelated to a federal
election or referendum.
16. Only the authoriser, being the person who had ultimate control over the creation
of the electoral matter, can be held liable, and they will be entitled to rely on the
defences and exceptions available to them under common law or other
legislation. For example, section 95 of the Regulatory Powers Act provides that a
person (the authoriser) will not be liable if they were under a mistaken but
reasonable belief about the existence of facts that, had those facts actually
existed, the matter would not be inaccurate and misleading to a material extent.
17. The threshold of 'inaccurate and misleading to a material extent' is a high
standard that will only be met where the communication could significantly or
substantially mislead the reader or the viewer as to the accuracy of:
• the content of a written statement that purports to be a statement of fact;
• an audio representation of an audio statement by a candidate; or
• a visual depiction of a candidate.
7
18. Electoral advertising that is inaccurate and misleading to a material extent
represents a threat to the election of members of Parliament chosen by the
people. Such content increases the risk of voters being misled into forming voting
preferences that, had the voter not been misled, would not have been formed.
19. This Bill specifies the Panel may give a written notice requesting that the
authoriser publish a retraction, correct the content of the matter, and/or remove,
take down, withdraw or cease communicating the matter. These provisions
engage with the freedom of expression as they may require a person or entity to
make a communication that they would not otherwise make. The Federal Court
of Australia may compel compliance with a request from the Panel. As such, this
power, held by the Court within existing legal and judicial constraints, will be
exercised only if the Court considers it appropriate and lawful to do so.
20. Before reaching a decision or taking remedial action, the Panel must conduct an
investigation in accordance with the statutory framework. Any decision reached
will be subject to judicial review and be enforceable only by the courts.
21. To the extent that the Bill engages the right to freedom of expression, these
restrictions are reasonable, necessary, and proportionate to protect representative
democracy.
Disclosure of digital-technology in the creation of electoral matter
22. The Bill engages the right to freedom of expression because it requires the
authoriser of electoral matter or referendum matter to ensure that the matter's
authorisation statement discloses when it has been substantially or entirely
created or modified using digital technology (including AI). If the authoriser did
not already intend to disclose this, then the new requirement requires the
authoriser to make a certain communication that they would not have otherwise
made.
23. There is a strong public interest in ensuring that voters are aware when they are
being communicated to with electoral matter and referendum matter that has been
substantially digitally created or manipulated. It will aid voters in assessing the
veracity of the information they rely on when forming their voting preferences
and choosing the members of the Parliament.
24. This authorisation requirement facilitates transparency and public confidence in
Australia's electoral advertising without impacting public debate or prohibiting
the use of any digital technology. The disclosure requirement applies only to the
authoriser of the matter, and only applies if the matter is for the dominant
purpose of influencing the way electors vote in a federal election or referendum.
It does not apply to any satire, news, art, education material, academic content,
private communication for personal purposes, or any content unrelated to a
federal election or referendum.
25. To the extent that the Bill engages the right to freedom of expression, these
restrictions are reasonable, necessary, and proportionate to protect representative
democracy.
8
Right to take part in the conduct of public affairs under Article 25 of the ICCPR
26. Article 25(a) of the ICCPR states that every citizen shall have the right and the
opportunity, without unreasonable restrictions, to take part in the conduct of
public affairs, directly or through freely chosen representatives. Article 25(b) of
the ICCPR similarly provides for the right and opportunity of every citizen to
vote and to be elected at genuine periodic elections that guarantee the free
expression of the will of the electors.
27. Conditions may be applied to the exercise of rights under Article 25 where they
are established by law and based on objective and reasonable criteria. Any
interference must be proportionate to a legitimate end and be necessary in the
circumstances of any given case.
Prohibition on authorising materially inaccurate and misleading electoral matter
28. The Bill serves the legitimate end of ensuring that the members of the Parliament
are freely chosen by electors as a genuine and free expression of their will. It is to
prevent materially inaccurate and misleading electoral matter undermining
Australian electors' genuine formation of voting preferences, in a way that
distorts that choice.
29. The Bill applies to specific circumstances and includes exceptions to ensure that
any limitation on the right to take part in public affairs is targeted, proportionate,
and reasonable.
30. The Bill does not regulate the expression of any statement unless it is contained
in campaign material intended to influence a person's vote in a federal Australian
election or referendum that is communicated, or intended to be communicated,
during an election or referendum period. The Bill also does not prohibit the
communication of any opinion, satire, news, art, education material, or academic
content, any private communications for personal purposes, any matter
communicated outside of the election or referendum period, or any content
unrelated to a federal Australian election or referendum.
31. Only the authoriser, being the person who had ultimate control over the creation
of the electoral matter can be held liable, and this person will be entitled to rely
on the defences and exceptions available to them under common law or other
legislation. For example, an authoriser will not be liable if they were under a
mistaken but reasonable belief about the existence of facts that, had those facts
actually existed, the matter would not be inaccurate and misleading to a material
extent.
32. The threshold of 'inaccurate and misleading to a material extent' is a high
standard. This threshold and the various exceptions mean that the Bill does not
unduly interfere with the wide spectrum of communication necessary to the
healthy functioning of democracy and informed voting preference formation, but
rather only affects those materially inaccurate and misleading communications
that represent the greatest threat to Australian democracy.
33. The Panel may use information-gathering powers to investigate these new civil
penalty provisions. The Panel will also be empowered to request remedial action
and to seek injunctive relief from the Federal Court of Australia in response to
9
contraventions of these new civil penalty provisions. The exercise of such powers
is subject to statutory frameworks and criteria.
34. Before reaching a decision or taking remedial action, the Panel must conduct an
investigation in accordance with the statutory framework. Any decision reached
will be subject to judicial review and be enforceable only by the courts.
35. To the extent the protection to take part in the conduct of public affairs and
elections is limited, the Bill ensures that any interference is reasonable,
necessary, and proportionate to protect representative democracy.
Disclosure of digital-technology in the creation of electoral matter
36. The Bill serves the legitimate end of ensuring that the members of the Parliament
are freely chosen by electors as a genuine and free expression of their will. It will
aid electors in assessing the veracity of the information they rely on when
forming their voting preferences, by ensuring that electors are aware when they
are being communicated to with electoral matter and referendum matter that has
been substantially digitally created or manipulated.
37. The Bill applies to specific circumstances and includes exceptions to ensure that
any limitation on the right to take part in public affairs is targeted, proportionate,
and reasonable.
38. This authorisation requirement facilitates transparency and public confidence in
Australia's electoral advertising without impacting public debate or prohibiting
the use of any digital technology. The disclosure requirement applies only to the
authoriser of the matter, and only applies if the matter is for the dominant
purpose of influencing the way electors vote in a federal election or referendum.
It does not apply to any satire, news, art, education material, academic content,
private communication for personal purposes, or any content unrelated to a
federal Australian election or referendum.
39. To the extent that the Bill engages the right to freedom of expression, these
restrictions are reasonable, necessary, and proportionate to protect representative
democracy.
Conclusion
The Bill is compatible with human rights because it promotes the protection of human
rights and, to the extent that it may limit human rights, those limitations are
reasonable, necessary, and proportionate to guarantee and protect other human rights.
10
ELECTORAL LEGISLATION AMENDMENT (ELECTORAL
COMMUNICATIONS) BILL 2024
NOTES ON CLAUSES
1. Public confidence in Australian elections is essential to the perceived and actual
legitimacy of the outcomes of democratic processes. Democracies around the
world are increasingly facing threats that undermine public trust in elections and
promote cynical disengagement with democratic practices.
2. This has been recognised internationally. In 2022, the OECD described
misinformation and disinformation as posing 'a fundamental threat to the free
and fact-based exchange of information underpinning democratic debate and trust
in public institutions'.1 In 2021, the European Commission said that it 'erodes
trust in institutions and in media and harms democracies by hampering the ability
of citizens to make informed decisions'.2 In 2024, the World Economic Forum
identified it as the most severe global risk for the year, noting its capacity to
'radically disrupt electoral processes', cause political violence, and 'threaten
national cohesion'.3
3. In 2024, the Australian Government's report Strengthening Australian
Democracy: a practical agenda for democratic resilience recognised that 'the
same free flows of information so important to fostering public debate and
holding elected representatives to account can carry false and misleading
narratives that distort people's understanding, erode trust in our shared reality,
and undermine the integrity of political process'.4
4. It is equally recognised in academic studies that electoral misinformation and
disinformation causes substantial damage to the functioning of a genuine
democracy.5 It can discourage political participation,6 create doubt in authentic
electoral outcomes,7 promote suspicion of public institutions in general,8 and
1
OECD, Building Trust and Reinforcing Democracy: Preparing the Ground for Government Action
(OECD Public Governance Reviews, 2022), 9.
2
European Commission, 'Disinformation: A threat to democracy -- Brochure', Shaping Europe's
digital future (Web Page, 9 April 2021) .
3
World Economic Forum, The Global Risks Report 2024 (Insight Report 19th edition, January 2024),
18-20.
4
Strengthening Democracy Taskforce, Strengthening Australian democracy: A practical agenda for
democratic resilience (Report, 2024), 32.
5
Lisa Hill, Max Douglass and Ravi Baltutis, How and Why to Regulate False Political Advertising in
Australia (2022) (Palgrave MacMillan, 2022) ('Hill et al'), 20, 54; Stephen C. Craig and Jason
Gainous 'To vote or not to vote? Fake news, voter fraud, and support for postponing the 2020 U.S.
presidential election (2024) 52(1) Politics and Policy 33 ('Craig & Gainous'), 47.
6
Sangwon Lee and S Mo Jones-Jang, 'Cynical Nonpartisans: The role of Misinformation in Political
Cynicism during the 2020 Presidential Election' (2022) [Online First] New Media and Society 1 ('Lee
& Jones-Jang'), 16; Hill et al, 18.
7
Sebastian Mazey and Marlow Meares, ANU Law Reform & Social Justice Research Hub, Submission
No 354 to Joint Standing Committee on Electoral Matters, Inquiry into the 2022 federal election
(7 October 2022), 5; Hill et al, 54.
8
Carme Colomina, Hector Sanchez Margalef and Richard Youngs, The Impact of Disinformation on
Democratic Processes (Study, April 2021) ('Colomina et al'), 13; Hill et al, 18-19, 125.
11
cause an election to fail to fulfil one of its primary functions: the peaceful and
democratic transfer of power.9
5. False electoral information, and the means to make it, is rapidly becoming a
major phenomenon.10 Recent technological advances in AI have resulted in
widely available technology that can easily produce 'deepfake' visual and audio
material that targets the voting public. The effects of these AI-produced
misinformation campaigns can be seen in their deployment to influence the
integrity of electoral events in other democracies. For example, in the United
States of America, a robocall used AI voice-clone technology to imitate President
Joe Biden as if he were telling voters to not vote in a primary election.11 In the
lead up to the 2024 United Kingdom general election, deepfake videos depicting
then-Prime Minister Rishi Sunak were promoted via paid social media posts,12
and voice-cloning falsely depicted then-Opposition Leader Sir Keir Starmer
making disparaging remarks about staff.13
6. While the Electoral Act and the Referendum Act contain safeguards to support
the integrity of our electoral system, neither places any restrictions on deliberate
falsehoods in campaign advertising, other than in relation to how to validly
complete the ballot paper. Australia's electoral laws must evolve to maintain
public trust and support the integrity of elections against the increasing risk of
such misinformation and disinformation.
7. Legislative change is needed because civics education and 'fact-checking'
cannot, on their own, protect against the harmful impacts of electoral
misinformation and disinformation. Studies based on human cognitive
psychology have shown that falsehoods are communicated faster and more
widely than true statements,14 and that repeated exposure to a falsehood increases
a person's acceptance of it as true.15 It is also difficult for a person to identify
falsehoods in subjects that are not their expertise.16
9
Hill et al, 148.
10
Ferdinand Gehringer, Christopher Nehring and Mateusz Labuz, The Influence of Deep Fakes on
Elections: Legitimate Concern or Mere Alarmism? (Monitor, Konrad Adenauer Stiftung, May 2024)
('Gehringer et al'), 2-4, 6; Hill et al, 20.
11
Associated Press, 'New Hampshire attorney-general investigating AI call posing as Joe Biden ahead
of state's primary election', ABC (online, 23 January 2024) .
12
Ben Quinn, 'Slew of deepfake video adverts of Sunak on Facebook raises alarm over AI risk to
election', The Guardian (online, 13 January 2024)
.
13
Sky TV, 'Deepfake audio of Sir Keir Starmer released on first day of Labour conference', Sky News
(online, 9 October 2023) .
14
Soroush Vosoughi, Deb Roy and Sinan Aral, 'The spread of true and false news online' (2018)
359(6380) Science 1146 ('Vosoughi et al'), 2-5.
15
Stephan Lewandowsky et al, 'Misinformation and Its Correction' (2012) 13(3) Psychological Science
in the Public Interest 106 ('Lewandowsky et al'), 113; Lee & Jones-Jang, 4; Fabian Zimmerman and
Matthias Kohring, 'Mistrust, Disinforming News and Vote Choice: A Panel Survey on the Origins and
Consequences of Believing Disinformation in the 2017 German Parliamentary Election' (2020)
37(2) Political Communication 215 ('Zimmerman & Kohring'), 217.
16
Hill et al, 27, 30, 55; Zimmerman & Kohring, 109-113.
12
8. In 2023, the JSCEM recommended that the Government consider measures to
govern 'truth in political advertising' to be administered by the AEC, giving
particular consideration to the framework that has been in place for South
Australian state elections since 1985. A similar framework was also adopted by
the Australian Capital Territory in 2020.
9. The South Australian framework in the Electoral Act 1985 (SA) prohibits the
communication of electoral advertisements containing a statement purporting to
be factual but which is inaccurate and misleading to a material extent.
10. In 2021, the Victorian Parliament's Electoral Matters Committee received
evidence that the South Australian framework has led to cultural change that
deters the most serious forms of electoral misinformation and disinformation in
South Australian state elections.17 In 2024, interviews conducted by an Associate
Professor of Monash University found unanimous agreement amongst political
stakeholders that the South Australian framework created no 'chilling effect' on
free speech, potentially because the framework is confined to statements of fact
and not to opinions or predictions.18
11. The Bill will implement the JSCEM's recommendation, by adapting the South
Australian model to the federal election context and contemporary information
environment, most notably by protecting candidates from false visual and audio
impersonations. As the Australian Electoral Commissioner has noted, Australia's
electoral laws are not currently designed to address contemporary developments
like AI, and this outdatedness places limits on the AEC's scope of operations.19
12. Visual misinformation has been shown to trigger stronger emotional reactions,
and therefore be more persuasive and shared more quickly, than written
misinformation.20 Deepfakes in an election are typically used to discredit
candidates and can significantly lower public attitudes towards those depicted.21
A prevalence of convincing deepfakes can also cause doubt and confusion
between real and fake content, which can then be exploited to convince voters to
disbelieve damaging recordings that are actually real ('the liar's dividend').22
17
Evidence to Electoral Matters Committee, Victoria, Melbourne, 15 February 2021,9 (Professor Luke
Beck); Electoral Matters Committee, Parliament of Victoria, Inquiry into the effects of social media on
elections and electoral administration (Final Report, 14 September 2021), 117-118.
18
Yee-Fui Ng, Truth in political advertising laws: operation and effectiveness (Interim Report,
13 September 2024), 5, 18, 37.
19
Nick Bryant, 'Defending our democracy: How a cranky uncle, Swedish inspo and 'pre-bunking' help
out', The Sydney Morning Herald, (online, 6 September 2024)
.
20
Hana Matatov, Mor Naaman and Ofra Amir, 'Stop the [Image] Steal: The Role and Dynamics of
Visual Content in the 2020 U.S. Election Misinformation Campaign' (2022) 6(CSCW2) PACM HCI
541:1-24 ('Matatov et al'), 3.
21
Andrew Ray, 'Disinformation, Deepfakes and Democracies: The Need for Legislative Reform'
(2021) 44(3) UNSW Law Journal 983 ('Ray'), 988-990; Tom Dobber et al, 'Do (Microtargeted)
Deepfakes Have Real Effects on Political Attitudes' (2021) 26(1) The International Journal of
Press/Politics 69 ('Dobber et al'), 69-70; Gehringer et al, 2.
22
Ray, 989; Freedom House, The Repressive Power of Artificial Intelligence (Freedom on the Net,
2023), 12.
13
13. The Bill will address the risks of misinformation and disinformation by
prohibiting the authorisation of electoral advertisements and materials that
contain:
• a written statement purporting to be factual but which is inaccurate and
misleading to a material extent;
• a visual depiction of a candidate purporting to be a factual depiction but
which is inaccurate and misleading to a material extent (such as realistic
edited imagery or AI deepfakes) without the candidate's consent; or
• an audio depiction of a candidate purporting to be a real statement from the
candidate but which is inaccurate and misleading to a material extent (such as
an AI voice-clone) without the candidate's consent.
14. The Bill has been tailored to address these particularly damaging forms of
electoral disinformation and impersonations without unduly restricting freedom
of speech. The Bill applies only to electoral advertisements and certain
promotional materials, such as election pamphlets and posters, which seek to
influence a person's vote and which are already subject to the authorisation
frameworks in the Electoral Act and Referendum Act. The new prohibitions
expressly do not regulate any opinion, private communication, satirical content,
art, educational material, academic content, or professional news media. They
also do not apply to any federal electoral content that is created and
communicated via private social media posts, or to any electoral content for a
state or territory election.
15. The prohibitions are further refined such that they apply only to the person who
had ultimate control over, and approved, the content of the advertisement or
promotional material for communication. It does not apply to anyone else
involved in the content's creation or communication, nor to anyone who
subsequently shares the content. This ensures that the new prohibitions fall only
on the person responsible for the content and not on broadcasters, publishers, or
members of the public who share the content online.
16. The prohibitions apply only during, or in relation to, a federal election period or
referendum period. This is the period when a considerable proportion of
Australians decide how to vote or consider changing their voting intention.23 This
means the prohibitions are targeted at electoral misinformation and
disinformation when it has the greatest capacity to undermine the integrity of
federal Australian elections and referendums, without burdening any speech
outside of election or referendum periods.
17. The prohibitions will be administrated by a newly established 'Electoral
Communications Panel'. Consistent with the JSCEM's recommendation that the
AEC administer 'truth in political advertising' laws, the Panel will be an
independent secondary statutory structure operating within the existing
organisational structure of the AEC.
23
Sarah Cameron and Ian McAllister, Trends in Australian Political Opinion (Australian Election
Study, December 2022) ('Cameron & McAllister'), 18, 23, 32.
14
18. All decision-making and investigative powers held by the Panel will be exercised
independently of the powers of the Electoral Commissioner and the three-person
Electoral Commission. This separation will preserve the AEC's neutrality and
ability to focus on conducting elections, whilst allowing the Panel to benefit from
the electoral expertise and institutional knowledge of the AEC.24
19. The Panel will comprise a Chair and up to 14 members. The Chair will be a
retired Federal Court judge, appointed as Chair by the Governor-General on
recommendation by the Minister and with the approval of the JSCEM. This
multi-partisan process will ensure that there is confidence in the Chair's political
independence and impartiality.
20. Upon receiving a report from a member of the public about a possible
contravention, the Chair will select at least three of the members to consider the
report. This smaller Panel is a 'Decision Panel', which must make and publish its
decision within a short timeframe (generally, two days). This model recognises
that, if there is a delay between the spread of misinformation and its public
correction, then the remedial action is less effective in counteracting the negative
effects of the misinformation.25
21. If a Decision Panel decides that the content is inaccurate and misleading to a
material extent, the Decision Panel may request that the authoriser of the content
either publish a retraction, correct the content of the matter, or take down the
content. If the person fails to comply with the request, the Decision Panel may
apply to the Federal Court for enforcement. Only the Court can legally require
the person to take the requested action.
22. This mechanism for the Court to order the authoriser to retract, correct, or take
down is consistent with psychological research that shows that:
• corrections and retractions are most effective if they are from the same source
as the misinformation or appear alongside the misinformation;26 and
• take-downs have the direct effect of disincentivising and removing
misinformation that has the potential to mislead voters.27
23. Separately to the new prohibitions and the Panel model, the Bill will also require
electoral matter or referendum matter that has been substantially or entirely
created using digital technology (including AI) to carry a statement to that effect.
This will provide greater transparency for voters to consider the accuracy of
digitally-modified electoral matter that is communicated to them. An equivalent
requirement was adopted in the 2024 United Kingdom general election, on a
voluntary basis, to complement the United Kingdom's authorisation requirements
for campaigning material.28
24
See Hill et al, 136.
25
Nathan Walter and Riva Tukachinsky, 'A Meta-Analytic Examination of the Continued Influence of
Misinformation in the Face of Correction: How Powerful is it, Why Does it Happen, and How to Stop
it?' (2019) 47(2) Communication Research 155 ('Walter & Tukachinksy'), 155, 170.
26
Walter & Tukachinsky, 155, 170; Ullrich Ecker et al, 'The psychological drivers of misinformation
belief and its resistance to correction' [2022] 1 Nature Reviews Psychology 13 ('Ecker et al'), 21-22.
27
Hill et al, 119.
28
Electoral Commission of the United Kingdom, 'New advice for voters on disinformation, and for
campaigners using generative AI' (Media Release, 17 June 2024).
15
24. Part 1 of Schedule 1, Part 1 of Schedule 2, and Schedules 3 and 4 will commence
from 1 January 2026 to allow sufficient time for education and public awareness
campaign for political actors, publishers, and broadcasters to be aware of the new
arrangements.
25. Part 2 of Schedule 1 and Part 2 of Schedule 2 commence the 28th day after the
Royal Assent.
Clause 1--Short title
26. Clause 1 is a formal provision specifying the title of the Bill when enacted will
be the Electoral Legislation Amendment (Electoral Communications) Act 2024
(the Act).
Clause 2--Commencement
27. Subclause 2(1) provides that the provisions in column 1 of the table
(Commencement table) commence at the time set out in column 2 of the table.
28. Item 1 in the Commencement table provides that Sections 1 to 3, and anything in
the Act not elsewhere covered by the Commencement table, commences the day
the Act receives the Royal Assent.
29. Item 2 in the Commencement table provides that Part 1 of Schedule 1 to the Act
commences on 1 January 2026.
30. Item 3 in the Commencement table provides that Part 2 of Schedule 1 to the Act
commences on the 28th day after the Act receives the Royal Assent.
31. Item 4 in the Commencement table provides that Part 1 of Schedule 2 to the Act
commences on 1 January 2026.
32. Item 5 in the Commencement table provides that Part 2 of Schedule 2 to the Act
commences on the 28th day after the Act receives the Royal Assent.
33. Item 6 in the Commencement table provides that Schedules 3 and 4 to the Act
commence on 1 January 2026.
34. A Note is inserted below the Commencement table, stating that the table relates
only to the provisions of the Act as originally enacted. The table will not be
amended to deal with any later amendments of the Act.
35. Subclause 2(2) provides that information in column 3 of the Commencement
table is not part of the Act. Information may be inserted into column 3, or
information in column 3 may be edited, in any published version of the Act.
Clause 3--Schedules
36. Clause 3 provides that legislation specified in a Schedule to the Act is amended
or repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to the Act has effect according to its terms.
16
Schedule 1--Amendment of the Electoral Act
Part 1--Main amendments
Commonwealth Electoral Act 1918
37. Item 1 inserts a new definition into subsection 4(1) of the Electoral Act to define
the 'Electoral Communications Panel' as having the meaning given by new
section 321JA(1).
38. Item 2 amends the definition of 'officer' in subsection 4(1) of the Electoral Act.
For the purposes of the Electoral Act, an officer does not include a member of the
Electoral Communications Panel. This ensures that the Panel can operate
independently, by clarifying that the members of the Panel are not officers of the
AEC and are not subject to directions from the Electoral Commissioner.
39. Item 3 inserts new subsection 4AA(2A) to specify that, for the purposes of
subsection 4AA(1), the dominant purpose of a communication or intended
communication of electoral matter is to be determined objectively, by reference
to what a reasonable person would consider the dominant purpose of the
communication or intended communication to be. This objective test will support
enforcement by allowing the AEC, the Electoral Communications Panel, and the
Courts to interpret communications based on the content and context as viewed
by voters, not on what the author contends was their subjective intention.
40. Item 4 restructures paragraph 4AA(5)(a) to clarify that content forming part of
the reporting of news or presenting of current affairs is exempt from the
definition of 'electoral matter' only if that reporting or presenting is in news
media. This is consistent with the interpretation of paragraph 4AA(5)(a) applied
by the Federal Court of Australia in Electoral Commissioner of the Australian
Electoral Commission v Laming (No 2) [2023] FCA 917.
41. Item 5 inserts new subsection 4AA(6) to provide a definition of 'news media' for
the purposes of section 4AA. A news source will only be considered 'news
media' if it meets both the criteria set out in new paragraphs 4AA(6)(a) and (b).
This updates the definition to ensure only genuine and recognised media outlets
are covered by the exemption, such that a person cannot claim that their content
is 'news media' merely because they self-identify as a journalist. It also preserves
the news exemption for professional reporting about misinformation and
disinformation, whilst ensuring that a person cannot avoid the new civil penalty
provisions by creating a superficial media outlet.
42. New paragraph 4AA(6)(a) provides the first limb for 'news media'. For the limb
to be satisfied, the news source must be subject to any or all of the following:
• the rules of the Australian Press Council Standards of Practice or the
Independent Media Council Code of Conduct;
• the rules of the Commercial Television Industry Code of Practice, the
Commercial Radio Code of Practice, or the Subscription Broadcast
Television Codes of Practice;
• the rules of a code of practice referred to in paragraph 8(1)(e) of the
Australian Broadcasting Corporation Act 1983 or paragraph 10(1)(j) of the
SBS Act;
17
• rules or internal editorial standards that are analogous to the rules mentioned
above, to the extent that they relate to the provision of quality journalism; or
• rules that replace those mentioned in new subparagraphs 4AA(6)(a)(i), (ii), or
(iii) and are specified in regulations made for the purposes of new
paragraph 4AA(6)(a).
43. New paragraph 4AA(6)(b) provides the second limb for 'news media'. For the
limb to be satisfied, the news source must have editorial independence from the
subjects of the news source's news coverage.
44. The definition of 'news media' in new subsection 4AA(6) is intended to be
consistent with subsection 52P(1) of the Competition and Consumer Act 2010,
with the exception of regulations made under that subsection.
45. Item 6 adds a Note at the end of subsection 6(2) to alert the reader that, in
accordance with new paragraph 321Q(2)(a), the Panel is also part of the Electoral
Commission for the purposes of the finance law, within the meaning of the
PGPA Act.
46. Item 7 adds a Note at the end of subsection 6(2A) to direct the reader to
subsection 321Q(2), which deals with the establishment of the Panel for the
purposes of the finance law, within the meaning of the PGPA Act.
47. Items 8, 10, 12-21, 23, and 25-26 amend various sections in Part XXA of the
Electoral Act to clarify that an entity, as well as a natural person, can 'authorise'
electoral matter and is therefore subject to Part XXA.
48. Items 9 and 11 amend the definition of 'authorises' to clarify that, where the
content of electoral matter is approved before the matter is communicated, a
person or entity who is not the approver is considered as 'authorising' a
communication of the matter if the person or entity pays for the communication
without the approval or knowledge of the approver.
49. This is an important amendment to clarify who is the responsible person for the
various civil penalty provisions when electoral matter is approved by one person
but then another person independently pays for it to be republished. This
amendment ensures that, where the original approver did not approve the content
for that subsequent republication, the person or entity who paid for the
republication is deemed to have 'authorised' that republication. This ensures that
approvers are not made liable for the actions of others who reproduce their
content in ways that the approver did not consent to or intend.
50. Item 22 inserts new subsection 321F(4A) to strengthen the enforcement
provisions of the Electoral Commissioner's information-gathering powers for
assessing compliance with authorisations requirements. This Item makes it an
offence for failing to comply with an information-gathering notice from the
Electoral Commissioner given under subsection 321F(2). This new offence
carries a maximum civil penalty of 200 penalty units for a breach of subsection
321F, which is consistent with the civil penalty in existing subsection 110E(4A)
of the Referendum Act.
18
51. Item 24 is a consequential amendment to the inclusion of new subsection
321F(4A) in Item 22. This Item requires that a notice given under section 321F
must state that it is an offence for the person or entity to contravene the notice, as
set out in new subsection 321F(4A).
Part XXB--Electoral Communications
52. Item 27 inserts new Part XXB (Electoral Communications) to provide for the
new Electoral Communications civil penalties and establish the Electoral
Communications Panel.
Division 1--Preliminary
53. Division 1--Preliminary of Part XXB sets out the simplified outline, definitions,
and objects of Part XXB.
54. New section 321J provides a simplified outline of new Part XXB.
55. New section 321JA inserts new definitional terms to support the operation and
enforcement of the civil penalty provisions in this Division.
56. New section 321JA specifies that a 'Division 2 civil penalty provision' refers to
either new subsection 321L(1), 321M(1) or 321MA(1) included in Division 2 of
this Part.
57. New section 321JA defines an 'ancillary contravention' of a Division 2 civil
penalty provision as a contravention of a Division 2 civil penalty provision as a
result of section 92 of the Regulatory Powers Act.
58. This means that, if a person undertakes any of the ancillary activities specified in
section 92 of the Regulatory Powers Act in relation to a Division 2 civil penalty
provision, then the person is taken to have committed an ancillary contravention
of that Division 2 civil penalty provision.
59. These ancillary activities are: attempting a contravention; aiding, abetting,
counselling, or procuring a contravention; inducing a contravention; being
knowingly concerned in a contravention; or conspiring with other to affect a
contravention of a Division 2 civil penalty provision. A 'primary contravention'
of a Division 2 civil penalty provision means a contravention of a Division 2 civil
penalty provision that is not an ancillary contravention. For consistency with the
authorisations requirements in Part XXA of the Electoral Act, these definitions
are intended to operate the same as the equivalent definitions in existing section
321B of Part XXA.
60. New section 321JA defines the 'Electoral Communications Panel' as the Panel
established by new subsection 321Q(1), and that a reference to the 'Chair' is to
be taken as a reference to the Chairperson of that Panel. The Chair is to be
appointed under new section 321QB and is granted various powers under new
Part XXB. Additionally, a reference to a 'member' is taken to be a reference to a
member of that Panel and, unless otherwise specified, is taken to include the
Chair. New section 321JA specifies that a reference to a 'Decision Panel' in this
Part means the members of the Electoral Communications Panel selected by the
Chair under new paragraph 321QG(1)(c). These definitions are included to
clarify the operation of various sections included in this Part.
19
61. New section 321JA provides that a reference to the 'Electoral Matters
Committee' is a reference to the JSCEM. This definition is included for the
purposes of subsequent provisions that provide for the JSCEM's role in
approving a proposed Chair of the Panel and for reviewing new Part XXB
following the first federal election after commencement of the Part.
62. New section 321JA defines:
• 'authorises', 'communicate' and 'conduct' as having the same meaning as in
Part XXA;
• 'election' and 'election period' as having the same meaning as in Part XX,
being consistent with the definition of 'relevant period' in section 322 for
Part XXI; and
• 'candidate' as an individual who has been nominated for election as a
Senator, or a member of the House of Representatives, under Part XIV (that
is, an individual whose has been declared as a candidate in accordance with
section 176).
63. For the purposes of certain administrative provisions relating to the Electoral
Communications Panel, 'paid work' is defined as work for financial gain or
reward, whether undertaken as an employee, a self-employed person or
otherwise. This is to ensure that the prohibition on the Chair or members of the
Electoral Communications Panel engaging in paid work is broad enough to
ensure that the integrity of the Electoral Communications Panel is protected.
64. The definition of 'authorisable electoral matter' in new section 321JA has been
calibrated to ensure that the Division 2 civil penalty provisions apply only to
electoral matter that represents the greatest influence on voter choice, without
impacting other forms of political communication.
65. 'Authorisable electoral matter' means electoral matter to which existing
paragraph 321D(1)(a) or (b) in Part XXA applies, except not matter that forms
part of a sticker or a fridge magnet unless the circumstances determined under
new subsection 321JA(3) apply. That is, the definition covers communicated
electoral matter that:
• is an electoral advertisement, the distribution or production of which was paid
for (either partially or wholly) and the content of which was approved by a
person or entity (the scope of existing paragraph 321D(1)(a)); or
• was approved by a person or entity and forms part of a leaflet, flyer,
pamphlet, notice, poster or how-to-vote card (the scope of existing paragraph
321D(1)(b), except stickers and fridge magnets); or
• was approved by a person or entity and forms part of a sticker or fridge
magnet in the circumstances (if any) determined under new
subsection321JA(3).
66. This scope will leverage the existing definition of 'electoral matter' and the
authorisations requirements in Part XXA.
67. Note 1 is included after the definition of 'authorisable electoral matter' to direct
readers to the definition of 'electoral matter' in section 4AA.
20
68. Note 2 is included after the definition of 'authorisable electoral matter' to alert
the reader that 'authorisable electoral matter' does not include:
• matter that is not electoral matter because of subsection 4AA(5);
• electoral matter to which paragraph 321D(1)(c) applies; or
• electoral matter in relation to which 321D does not apply because of
subsection 321D(3) or (4).
69. New subsection 321JA(3) empowers the Chair to determine, by legislative
instrument, circumstances in which electoral matter forming part of a sticker or
fridge magnet is included in the definition of 'authorisable electoral matter'. This
is intended to allow the Chair to determine the circumstances when a sticker or
fridge magnet is functionally the same as a leaflet, flyer, pamphlet, notice, poster,
or how-to-vote card. For example, the Chair could determine that stickers or
magnets larger than 1 m2 be included in scope, if the Chair considers it to be
large enough to contain content like a poster that could have a significant impact
on voter choice.
70. New Part XXB responds to emerging threats to democracy and election practices.
New section 321K provides that the object of new Part XXB is to protect
representative democracy, by preventing the distortion of the constitutionally
mandated choice by the people of the members of Parliament. New Part XXB
aims to do this by prohibiting the dissemination of certain inaccurate and
misleading electoral matter during election periods, as administered by the
Electoral Communications Panel.29
71. New subsection 321K(3) clarifies that Part XXB is not intended to detract from
the ability of any person or entity to communicate or express an opinion.
Part XXB is also not intended to detract from the ability of any person or entity
to:
• conduct private communications for personal purposes (as per the exceptions
in paragraphs 4AA(5)(c) and 321D(4)(d));
• create or communicate political satire, news, art, education material or
academic content (as per the exceptions in subsection 4AA(5));
• create or communicate content that is unrelated to an Australian federal
election (as per the definition of 'election' in new section 321JA); or
• create and communicate electoral matter via unpaid means (as per the paid
nature of electoral matter in paragraphs 321D(1)(a) and (b)).
72. New section 321KA provides that new Part XXB does not apply to a person or
entity to the extent that any constitutional doctrine of implied freedom of political
communication, as it relates to the person or entity, would be infringed.
29
For further information regarding the distortion of electoral choice by inaccurate and misleading
electoral matter, see Hill et al, 18-20; Zimmerman & Kohring, 217, 231; Lee & Jones-Jang, 4, 15-17;
and Craig & Gainous, 46-47.
21
Division 2--Civil penalties for authorising communication of authorisable electoral
matter containing inaccurate and misleading content
73. Division 2--Civil penalties for authorising communication of authorisable
electoral matter containing inaccurate and misleading content sets out the new
civil penalty provisions to which authorisable electoral matter is subject.
Section 321L--Authorising communication of inaccurate and misleading written
electoral matter
74. New section 321L sets out the civil penalty provision applicable to the
communication of authorisable electoral matter that contains a written statement.
75. The new section provides that a person or entity is liable to a civil penalty if they
authorise the communication of electoral matter in circumstances that satisfy the
criteria of new paragraphs 321L(1)(a)-(d), subject to the exceptions included in
new subsections 321L(2) and (3). Contravention of this provision is subject to a
civil penalty of up to 1,000 penalty units.
76. The penalty amount for contravention of new section 321L has been calibrated to
ensure that these provisions operate as an effective deterrent to the proliferation
of authorisable electoral matter containing inaccurate and misleading content that
may distort the constitutionally mandated choice by the people of the members of
Parliament.
77. The penalty of up to 1,000 penalty units has been set in reference to the impact
that written statements purporting to be a statement of fact that are inaccurate and
misleading to a material extent can have on voter choice.30
78. The penalty amount of 1,000 penalty units is a maximum intended for the most
damaging or aggravated instances of contravention. Not every contravention of
new section 321L will have the same magnitude of distortion on voter choice.
Providing a high maximum of 1,000 penalty units ensures that the wide range of
possible effects of misleading and inaccurate authorisable electoral matter can be
deterred, and to ensure that penalties for contraventions do not become merely
the 'cost of doing business' for an inaccurate and misleading election campaign.
79. New paragraph 321L(1)(a) provides the first limb of the civil penalty provision.
This limb is satisfied if the person or entity authorises the communication of
authorisable electoral matter. This paragraph's use of 'authorise' (as defined in
Part XX of the Electoral Act) is intended to ensure that only those who are in
ultimate control of the communication are covered, as opposed to those who
merely allow or give effect to the authoriser's communication.
30
For further information regarding the impact written statements purporting to be a statement of fact
that are inaccurate and misleading to material extent, see Hill et al, 18-20, 30, 54, 125, 148; Vosoughi
et al, 2-5; Kevin Munger et al, 'Political Knowledge and Misinformation in the Era of Social Media:
Evidence From the 2015 UK Election' (2022) 52(1) British Journal of Political Science 107, 125;
Colomina et al, 13, 15; and Tai-Li Wang, 'Does Fake News Matter to Election Outcomes? The Case
Study of Taiwan's 2018 Local Elections' (2020) 8(2) Asian Journal for Public Opinion Research 67,
67, 77-78, 86-87.
22
80. New paragraph 321L(1)(b) provides the second limb of the civil penalty
provision. This limb is satisfied if the authorisable electoral matter contains a
written statement that purports to be a statement of fact.
81. A Note after new subsection 321L(1) clarifies the scope of new paragraph
321L(1)(b). A statement does not purport to be a statement of fact if a reasonable
observer would understand that the statement conveys, in substance, a matter that
is not capable of being proven or verified. The phrase 'in substance' is intended
to mean what the reasonable observer takes to be the statement's meaning
(explicit or implicit), as opposed to merely how the statement is superficially
expressed.
82. The phrase 'purporting to be a statement of fact', and the Note after new
subsection 321L(1), are intended to confine the scope to statements that a
reasonable observer would consider provable. If a statement asserts something
that a reasonable observer would consider is impossible for the author to know,
prove or verify, then the statement cannot 'purport' to be a statement of fact,
even if the author's words attempt to portray it as factual.
83. A statement of opinion is incapable of 'purporting to be a statement of fact'. A
statement of opinion is intended to capture a statement that is, in substance, not
an objective statement that can be tested or measured through factual, empirical
analysis. Even if the opinion is based on facts and evidence, this alone does not
make it a purported statement of fact, as it could still be a subjective deduction or
qualitative conclusion that happens to be based on facts and evidence.
84. It is intended that a statement that is outwardly expressed as an opinion can still
purport to be a statement of fact if a reasonable observer would understand that
the statement is conveying, in substance, a matter capable of being proven or
disproven. This includes where a statement of opinion implies the existence of a
fact that is capable of being proven or disproven.
Example 1--statement of opinion that is a subjective description
Charlotte, the registered officer of The Pony Party, authorises a billboard
advertisement containing the written statement 'A vote for Paddy is a vote for
bad government'.
This statement does not satisfy paragraph 321L(1)(b), as 'bad government' is a
qualitative, subjective assessment.
Example 2--purported statement of fact
Jackson For Jobs, a lobby group, authorises a how-to-vote card containing a
written statement reading 'The Australian unemployment rate has fallen since
the Government was elected'.
This statement does satisfy 'purporting to be a statement of fact' in paragraph
321L(1)(b), as a reasonable observer would consider that the statement
conveys the provable fact that the unemployment rate is currently lower than
when the Government was elected.
23
Example 3--statement of opinion that is a subjective conclusion
Bo authorises an election pamphlet containing the written statement 'I've
surveyed my electorate and it feels like supermarket apples cost less than they
did last year'.
This statement does not satisfy paragraph 321L(1)(b). Whilst the statement
contains a matter that can be proven or disproven (that the local cost of apples
is less than it was last year), a reasonable observer would understand the
statement reflects Bo's subjective assessment of the price of apples, rather than
an objective assertion.
85. A statement conveying the subjective intention or an assertion about future
events will generally not be purporting to be a statement of fact.
86. A reasonable observer would understand that a statement of intention cannot be
factually verified because an intention is subjective and unfixed. A reasonable
observer would also understand that an assertion about future events (including a
promise of future conduct) is not objectively verifiable, because the future cannot
be objectively known by anyone. A reasonable observer would understand that
assertions or predictions about the future are, in substance, the author's opinion
or subjective analysis of factors, intentions, assumptions, and probability.
87. However, where a statement of intention or prediction implies the existence of
certain present circumstances, the statement can be a purported statement of fact
to the extent that the purported present circumstances are capable of being proven
or disproven.
Example 1--statement of intention
Simun is a candidate in an election and authorises a how-to-vote card
containing the written statement 'Elect me and I will introduce mandatory pen
licences'.
This statement does not satisfy paragraph 321L(1)(b), as a reasonable observer
would understand the statement reflects Simun's subjective intention. This
intention is based on his assumptions about the future, including what he
predicts will be his future ability and willingness to mandate pen licences as a
Parliamentarian. The reasonable observer would understand this is not
objectively verifiable or knowable, even to Simun himself.
Example 2--statement of intention that implies present circumstances
Artemis is a member of the House of Representatives endorsed by the Quokka
Party. She authorises a how-to-vote card containing the written statement 'I
promise that the Quokka Party will never stop fighting against the
Government's plan to ban pen licences.'
A reasonable observer would understand that Artemis' written statement
includes a statement that the Government has a plan to ban pen licenses.
Whether the Government has such a plan in the present can be objectively
proven or disproven. As such, the written statement contains a purported
statement of fact.
24
Example 3--prediction that does not imply present circumstances
Claudia authorises an electoral advertisement containing the written statement
'If my opponent is elected, you can be sure she will introduce pen licences'.
The advertisement does not refer to any statements from Claudia's opponent
about pen licences.
This statement does not satisfy paragraph 321L(1)(b), as a reasonable observer
would understand the statement is solely a prediction of future events based on
Claudia's subjective understanding and analysis of her opponent.
88. Whether a written statement purports to be a statement of fact is to be objectively
ascertained within the statement's context. Relevant context can include visual or
audio content contained in the same authorisable electoral matter as the written
statement.
89. Authorisable electoral matter satisfies new paragraph 321L(1)(b) if just one of
the written statements contained within the matter is a statement purporting to be
a statement of fact. It is not necessary for every written statement within the
authorisable electoral matter to purport to be a statement of fact.
90. New paragraph 321L(1)(c) provides the third limb of the civil penalty provision.
This limb is satisfied if the purported statement of fact is inaccurate and
misleading to a material extent. The phrase 'inaccurate and misleading' is to be
read as a single requirement that is subject to the qualifier 'to a material extent'.
• 'Inaccurate' is intended to be given its ordinary meaning of 'incorrect',
'erroneous', or 'untrue'.
• 'Misleading' is intended to be given its ordinary meaning of 'that leads
someone astray, that causes error; imprecise, confusing, deceptive'.
• 'Material' is intended to be given its ordinary meaning of 'substantial import
or much consequence'.
• As such, 'to a material extent' is intended to mean to a substantial or
significant extent.
91. The phrase 'inaccurate and misleading to a material extent' is intended to refer to
whether or not the inaccurate and misleading content could significantly or
substantially mislead a reader as to the statement made by the content's subject.
It is not intended to be related to the degree to which the inaccurate and
misleading content could affect an election, such as how widely the content is
distributed or how many voters view it.
Example 1--not inaccurate and misleading to a material extent
Adam, a Senator, authorises an election poster containing a written statement
reading 'Under my watch, the cost of a pineapple in Australian supermarkets
has dropped to a bargain $1.50'. In fact, the cost had decreased only to $1.51.
25
This statement is not inaccurate and misleading 'to a material extent', because
the one-cent inaccuracy in a pineapple's supermarket price is not material
enough to substantially or significantly mislead the reader as to statement
made by Adam.
Example 2--inaccurate and misleading to a material extent
Harper, the head of a political action group, authorises the communication of a
pamphlet containing the written statement 'The Opposition Leader has
committed to cut the funding of schools that have fewer than 500 students'. In
fact, the Opposition Leader's campaign commitment is to reduce funding for
schools with fewer than 25 students.
This written statement is a purported statement of fact as a reasonable observer
would conclude the Opposition Leader has made a commitment to cut funding
for all schools that have fewer than 500 students.
The written statement is inaccurate and misleading to a material extent
because the statement presents as a statement of fact that the Opposition
Leader's policy includes all schools with 26-499 students, which is incorrect
and would substantially or significantly mislead the reader about the policy.
92. New paragraph 321L(1)(d) provides the fourth limb of the civil penalty
provision. This limb is satisfied if the person or entity's authorisation of the
communication occurs either:
• during an election period; or
• before an election period, but the person or entity intends for the
communication to (or knows that the communication is to) occur during the
election period.
93. This fourth limb is intended to confine the scope of the civil penalty provision to
electoral communications made during, or for the purpose of, the period between
the writ issue and the close of polls. This is the period when most campaigning is
conducted and when many voters form their political judgment as to which
candidates to support in an election.31
Example 1--authoriser intends for the communication to be made during
the election period
Sharon authorises the content of an election poster containing written
statements. When giving her approval for the poster, Sharon instructs her
marketing team that she wants the posters to start being publicly displayed as
soon as the Governor-General issues the writ for the election.
As Sharon intends for the authorisable electoral matter to be communicated
during the election period, the authorisation has occurred within the time
period covered by the civil penalty provision.
31
See Cameron & McAllister, 18, 32; and Ray, 987-988.
26
Example 2--authoriser knows the communication is to be made during
the election period
Eleni approves the content of a social media post that has been created by her
professional marketing staff and which contains written authorisable electoral
matter. She instructs her team to post it on her social media page every day for
the next seven days. Two days later, the Governor-General calls the election.
Eleni does not instruct her staff to cease posting.
As Eleni knows that the matter will be communicated during the election, even
though it was not her original intent, the authorisation has occurred within the
time period covered by the civil penalty provision.
94. New subsection 321L(2) provides an exception to the civil penalty provision in
new subsection 321L(1). It provides that the civil penalty provision does not
apply to a person or entity if both of the following are the case:
• the person or entity took no part in determining the content of the
authorisable electoral matter communicated; and
• the person or entity could not reasonably have been expected to have known
that the statement was both inaccurate to a material extent and misleading to a
material extent.
95. New subsection 321L(2) is not intended to affect the meaning of 'authorise' in
section 321B.
96. Note 1 after new paragraph 321L(2)(b) alerts the reader that a person or entity
that wishes to rely on new subsection 321L(2) bears an evidential burden in
relation to the exception in new subsection 321L(2). The Note also alerts the
reader to section 96 of the Regulatory Powers Act.
97. Note 2 is included to clarify that new subsection 321L(2) does not preclude any
other exception that a person or entity may also be able to rely on in relation to
new subsection 321L(1). For example, a person or entity might be able to rely on
the exceptions contained in section 95 of the Regulatory Powers Act (mistake of
fact) or under the common law.
98. New subsection 321L(3) further provides that new subsection 321L(1) does not
apply to the authorisation of authorisable electoral matter if the communication
of the matter:
• is lawfully paid for using an allowance provided for under the Parliamentary
Business Resources Act 2017; or
• is authorised by, or on behalf of, a Commonwealth Department.
99. Note 1 is included after new paragraph 321L(3)(b) and is intended to operate in
an equivalent manner as Note 1 after new paragraph 321L(2)(b).
100. Note 2 is included to direct readers to new section 321P for the geographical
application of new section 321L.
27
Section 321M--Authorising communication of inaccurate and misleading visual
electoral matter
101. New section 321M is the civil penalty provision applicable to the communication
of authorisable electoral matter that contains a visual depiction of a candidate that
is inaccurate and misleading to a material extent.
102. The new section provides that a person or entity is liable to a civil penalty if they
authorise the communication of electoral matter in circumstances that satisfy the
criteria of new paragraphs 321M(1)(a)-(d), subject to new subsections 321M(2)
and (3). Contravention of this provision is subject to a civil penalty of up to 1,000
penalty units.
103. The penalty amount of up to 1,000 penalty units has been calibrated to ensure
effective deterrence. Authorisable electoral matter that is inaccurate and
misleading to a material extent has a significant capacity to distort the
constitutionally mandated choice by the people of the member of Parliament.32
The maximum penalty of 1,000 penalty units has been set in reference to the
significant distortion such matter can have and the incentives that may exist to
authorise such material. The same considerations in relation to new section 321L,
apply to the setting of the maximum penalty at 1,000 penalty units.
104. New paragraph 321M(1)(a) provides the first limb of the civil penalty provision.
This limb is satisfied if the person or entity authorises the communication of
authorisable electoral matter. This limb is intended to operate in the same way as
new paragraph 321L(1)(a).
105. New paragraph 321M(1)(b) provides the second limb of the civil penalty
provision. This limb is satisfied if the authorisable electoral matter contains a
visual depiction purporting to be a factual visual depiction of a candidate for an
election.
106. The phrase 'a visual depiction purporting to be a factual visual depiction' is
intended to confine the scope of the paragraph to a visual depiction that is
realistic to such an extent that a reasonable observer would, correctly or
incorrectly, consider the depiction to be a direct visual record of a real event or
circumstance. This could be, for example, a visual 'deepfake' that convincingly
depicts conduct by the candidate.
107. The qualifier 'purporting to be a factual depiction' ensures that depictions that
are clearly fictional in context are not covered. For example, a cartoon rendering
of a candidate or a realistic rendering of an 'impossible event' would not purport
to be a factual depiction (see examples 1 and 2 below), as a reasonable observer
would understand that such renderings are not a direct visual record of a real
event or circumstance concerning the candidate.
108. Note 1 after new subsection 321M(1) specifies that new paragraph 321M(1)(b)
includes an image or video depicting a candidate where that depiction has been
partially or entirely created (or partially or entirely modified) with digital
32
For further information regarding the impact of visual depictions, see Ray, 987-990; Matatov et al, 3;
Dobber et al, 69-70; and Gehringer et al, 2-4.
28
technology, such that it creates a realistic depiction of the candidate. This could
be, for example, a 'deepfake' created or modified by digital technology.
109. Note 2 after new subsection 321M(1) alerts the reader that a visual depiction does
not purport to be a factual visual depiction of a candidate if it would be clear to a
reasonable observer that the depiction is not a direct visual record capturing
actual events or circumstances involving the candidate.
110. A 'direct' visual record is a visual record, such as a photograph, that directly
captures the event or circumstance without the involvement of an intermediary
exercising substantive creative control. An 'indirect' visual record is intended to
include content such as a painting or cartoon that, whilst capable of correctly
portraying a real event or circumstance, is made through intermediaries (the
artist, whether human or AI) exercising substantive creative control over the
visuals.
Example 1--visual depiction not purporting to be a factual visual
depiction
Eva authorises a campaign flyer containing a photoshopped image in which
Candidate Andrew's adult face has been superimposed over the face of a
young schoolchild receiving an 'F' report card.
This visual depiction is not 'purporting to be a factual visual depiction' as a
reasonable observer would know it is an impossible depiction that is not a
direct visual record of an actual occurrence concerning Andrew.
Example 2--visual depiction not purporting to be a factual visual
depiction
Piea authorises a television advertisement containing a 'deepfake' of
Candidate Scott such that it appears that Scott is as tall as a skyscraper. The
video's written caption underneath Scott says, 'My tax hikes are monstrously
large'.
This visual depiction is not 'purporting to be a factual visual depiction' as a
reasonable observer would know it is an impossible depiction that is not a
direct visual record of Scott's real height.
111. New paragraph 321M(1)(c) provides the third limb of the civil penalty provision.
This limb is satisfied if the visual depiction of the candidate is inaccurate and
misleading to a material extent.
112. The phrase 'inaccurate and misleading to a material extent' is intended to have
the same meaning as the phrase in new paragraph 321L(1)(c).
Example 1--visual depiction not inaccurate and misleading
Mabel authorises an election poster containing a photograph of Candidate
Francesca standing beside Mabel at a debate. The photo has been taken at such
an angle that Mabel appears taller than Francesca but, in reality, Mabel is
shorter.
29
The visual depiction of Francesca is not inaccurate and misleading as the
image is an accurate direct visual record of real circumstances (being
Francesca's height relative to Mabel from the perspective of the camera).
Example 2--visual depiction not inaccurate and misleading to a material
extent
Jemimah is a part of Firefighters for Vince, a lobby group seeking to promote
the candidacy of Candidate Vince. At an event where Vince was speaking,
Jemimah takes a photo on her smartphone of Vince smiling proudly in front of
a large crowd. After taking the photo, Jemimah's smartphone automatically
adjusts the colouring and brightness of the photograph to improve the aesthetic
quality. Jemimah later authorises the communication of campaign flyers
containing the improved photo.
The visual depiction of Vince is not inaccurate and misleading 'to a material
extent' as the alterations to colour and brightness would not significantly or
substantially mislead the viewer as to the accuracy of the visual depiction of
Vince.
Example 3--visual depiction inaccurate and misleading to a material
extent
Vasiliki authorises a television advertisement that contains a realistic deepfake
depiction of Candidate Romeo saluting the flag of a hostile foreign country,
with a voiceover that states 'Romeo doesn't support Australia. Don't let him
deceive you'. Romeo has never actually been associated with the foreign
country, and instead Vasiliki created this depiction using AI and unrelated
footage of Romeo saluting.
The visual depiction of Romeo is inaccurate and misleading 'to a material
extent' as it incorrectly depicts the target of his saluting in a way that would
significantly or substantially mislead the viewer as to the meaning of his
saluting.
113. New paragraph 321M(1)(d) provides the fourth limb of the civil penalty
provision. This limb is satisfied if the person or entity's authorisation of the
communication occurs either:
• during an election period; or
• before an election period, but the person or entity intends for the
communication to (or knows that the communication is to) occur during the
election period.
114. This fourth limb is intended to operate in the same way as the equivalent fourth
limb in new paragraph 321L(1)(d).
115. New subsection 321M(2) outlines the exceptions that apply to the civil penalty
provision in new subsection 321M(1).
30
116. New paragraph 321M(2)(a) provides that new subsection 321M(2) does not
apply to a person or entity if both of the following apply:
• the person or entity took no part in determining the content of the
authorisable electoral matter communicated; and
• the person or entity could not reasonably have been expected to have known
that visual depiction was inaccurate and misleading to a material extent.
117. Where the candidate depicted in the authorisable electoral matter authorised the
matter themselves, new paragraph 321M(2)(b) provides that the civil penalty
provision in new subsection 321M(1) will not apply.
118. Note 1 after new paragraph 321M(2)(b) is intended to operate in the same way as
the equivalent Note 1 after new paragraph 321L(2)(b).
119. Note 2 after new paragraph 321M(2)(b) is intended to operate in the same way as
the equivalent Note 2 after new paragraph 321L(2)(b).
Example--exception for candidate authorising own visual depiction
Candidate Catrina authorises the communication of an electoral advertisement
containing an AI-generated 'deepfake' video of herself shaking hands with
cheering firefighters.
As the candidate depicted is also the authoriser of the communication,
subsection 321M(1) does not apply to the authorisation, even though the event
depicted did not take place.
120. New subsection 321M(3) outlines further exceptions to the civil penalty
provision in new subsection 321M(1) and is intended to operate in the same way
as the equivalent exceptions in paragraph 321L(3).
121. Note 1 after new paragraph 321M(3)(b) is intended to operate in the same way as
the equivalent Note 1 after new paragraph 321L(2)(b).
122. Note 2 is included to direct the reader to new section 321P for the geographical
application of section 321M.
Section 321MA--Authorising communication of inaccurate and misleading audio
electoral matter
123. New section 321MA sets out the civil penalty applicable to the communication of
authorisable electoral matter that depicts a purported audio statement by a
candidate and that depiction is inaccurate and misleading to a material extent.
124. The new section provides that a person or entity is liable to a civil penalty if they
authorise the communication of electoral matter in circumstances that satisfy the
criteria of new paragraphs 321MA(1)(a)-(d). Contravention of this provision is
subject to a civil penalty of up to 1,000 penalty units.
125. The penalty amount of 1,000 penalty units has been calibrated to ensure effective
deterrence. Authorisable electoral matter that depicts a purported audio statement
by a candidate in a way that is inaccurate and misleading to a material extent has
31
a significant capacity to distort the constitutionally mandated choice by the
people of the members of Parliament.33
126. New paragraph 321MA(1)(a) provides the first limb of the civil penalty
provision. This limb is satisfied if the person or entity authorises the
communication of authorisable electoral matter. This limb is intended to operate
in the same way as new paragraph 321L(1)(a).
127. New paragraph 321MA(1)(b) provides the second limb of the civil penalty
provision. This limb is satisfied if the authorisable electoral matter contains an
audio depiction purporting to be a factual audio statement by a candidate for an
election.
128. The phrase 'an audio depiction purporting to be a factual audio statement' is
intended to confine the scope of the paragraph to an audio depiction that is
realistic to such an extent that a reasonable observer would consider the depiction
to be an authentic audio record of a real statement by a candidate for election. For
example, it is intended that this phrase captures a deepfake
'voice-clone', a realistic imitation, or the modification of real audio of a
candidate.
129. The qualifier 'purporting to be a factual audio statement' ensures that depictions
that are clearly fictional in context are not covered. For example, a clearly
satirical depiction of a plausible statement or a realistic depiction of a clearly
satirical statement would not purport to be a factual depiction, as a reasonable
observer would not regard those renderings as depicting a real statement made by
a candidate. For the avoidance of doubt, a 'factual' audio statement means a real
or authentic audio statement, not that the words of the audio statement itself are
necessarily stating a fact.
130. Note 1 after new subsection 321MA(1) specifies that new paragraph
321MA(1)(b) includes audio depicting a statement by the candidate where that
depiction has been partially or entirely created (or partially or entirely modified)
with digital technology, such that it creates a realistic depiction of a statement by
the candidate. This could be, for example, an audio 'deepfake' or 'voice-clone'
created or modified by digital technology.
131. Note 2 after new subsection 321MA(1) alerts the reader that an audio depiction
does not purport to be a factual audio statement by a candidate for an election if it
would be clear to a reasonable observer that the depiction is not a direct audio
record capturing actual events or circumstances involving the candidate.
132. A 'direct' audio record is an audio record, such as a microphone recording, that
directly captures the event or circumstance without the involvement of an
intermediary exercising substantive creative control. An example of an 'indirect'
audio record is an audio dramatisation that, whilst capable of correctly portraying
a real event or circumstance, is made through one or more intermediaries (the
artists or actors) exercising substantive creative control over the audio content.
33
For further information regarding the impact of audio depictions purporting to be factual depictions
of a candidate that are inaccurate and misleading to a material extent, see Ray, 987-990; Dobber et al,
69-70; and Gehringer et al, 2-4.
32
Example 1--audio depiction not purporting to be a factual audio
statement
Tamara authorises a radio advertisement containing a recording of an
exaggerated impression of Candidate Maree saying, 'I don't know what taxes
are, but I sure love raising them', followed by a voice-over that says, 'Maree
in power is no laughing matter'. The impression clearly exaggerates Maree's
accent, pitch, and pronunciation.
This audio depiction is not 'purporting to be a factual audio statement' by
Maree, as a reasonable observer would not consider this to be a direct audio
record of an actual statement made by Maree. Instead, a reasonable observer
would identify that an intermediary (the impressionist) has exercised
substantive creative control over the audio.
Example 2--audio depiction purporting to be a factual audio statement
Pablo authorises television advertisement containing an apparent recording of
Candidate Kerin saying 'I can't wait until I'm re-elected to this cushy job. I
don't even do anything'. The audio depiction was created using digital
technology 'voice-cloning' and there was no actual instance in which Kerin
made that statement.
This audio depiction is 'purporting to be a factual audio statement' as a
reasonable observer would consider this to be a direct audio record of an
actual statement made by Kerin. A reasonable observer would be unable to
identify that any intermediary (e.g. the user of the voice-cloning technology)
has exercised substantive creative control over the audio.
133. New paragraph 321MA(1)(c) provides the third limb of the civil penalty
provision. This limb is satisfied if the audio depiction of the candidate is
inaccurate and misleading to a material extent.
134. The phrase 'inaccurate and misleading to a material extent' is intended to have
the same meaning as the phrase in new paragraph 321L(1)(c). It refers to whether
or not the inaccurate and misleading depiction could mislead the viewer as to the
depiction of the candidate depicted.
Example--audio depiction that is inaccurate and misleading to a material
extent
Lina authorises a radio advertisement containing an audio depiction of
Candidate Keith saying, 'I pledge to direct all funding away from Victoria and
towards New South Wales'. Keith has never actually made this or any similar
statement, and instead Lina created this depiction using AI.
The audio depiction of Keith is inaccurate and misleading to a material extent
as it is purports to depict an audio statement that Keith did not make.
33
135. New paragraph 321MA(1)(d) provides the fourth limb of the civil penalty
provision. This limb is satisfied if the person or entity's authorisation of the
communications occurs either:
• during an election period; or
• before an election period, but the person or entity intends for the
communication to (or knows that the communication is to) occur during the
election period.
136. This fourth limb is intended to operate in the same way as the equivalent fourth
limb in new paragraph 321L(1)(d).
137. New subsection 321MA(2) outlines the exceptions that apply to the civil penalty
provision in new subsection 321MA(1). These exceptions are intended to operate
in the same way as the equivalent exceptions in new subsection 321M(2).
138. Note 1 after new paragraph 321MA(2)(b) is intended to operate in the same way
as the equivalent Note 1 after new paragraph 321L(2)(b).
139. Note 2 after new subsection 321MA(2) is intended to operate in the same way as
the equivalent Note 2 after new paragraph 321L(2)(b).
140. New subsection 321MA(3) outlines further exceptions to the civil penalty
provision in new subsection 321MA(1) and is intended to operate in the same
way as the equivalent exceptions in paragraph 321L(3).
141. Note 1 after new paragraph 321MA(3)(b) is intended to operate in the same way
as the equivalent Note 1 after new paragraph 321L(3)(b).
142. Note 2 is included to direct readers to new section 321P for the geographical
application of section 321MA.
Section 321N--Application in relation to entities that are not legal persons
143. New section 321N specifies the application of the Division 2 civil penalty
provisions in relation to entities that are not legal persons, for the purposes of the
Electoral Act and the Regulatory Powers Act.
144. New paragraph 321N(a) specifies that an entity that is not a legal person will be
taken to have authorised the communication of authorisable electoral matter if a
member, agent or officer (however described) of the entity, acting in the person's
actual or apparent authority, authorised the communication of the authorisable
electoral matter.
145. New paragraph 321N(b) provides who is to be taken to have committed a
contravention of a Division 2 civil penalty provision where an entity that is not a
legal person would otherwise be taken to have contravened a Division 2 civil
penalty provision. In such circumstances, each member, agent or officer
(however described) who, acting in the person's actual or apparent authority,
engaged in the conduct constituting the contravention, would be taken to have
committed the contravention.
34
146. It is appropriate for this section to extend the application of the Division 2 civil
penalty provisions to entities that are not legal persons as there are a significant
number of unincorporated entities that engage in the electoral process. The
Electoral Act does not require political actors to be incorporated. If the Division
2 civil penalty provisions were limited to incorporated entities, it would create an
incentive for campaigners to be unincorporated associations for the purposes of
avoiding the application of these provisions.
147. The scope of new section 321N is intended to be similar to existing section 287C,
which provides for the application of certain provisions in Part XX of the
Electoral Act to unincorporated entities.
Section 321P-Extended geographical application of Division 2 civil penalty provision
148. New subsection 321P(1) specifies that a person or entity will not contravene a
Division 2 civil penalty provision unless one of the circumstances in new
paragraphs 321P(1)(a)-(d) apply.
149. New paragraph 321P(1)(a) refers to the circumstance where the conduct
constituting the alleged contravention occurs wholly or partly in Australia, or
wholly or partly on board an Australian aircraft or ship.
150. New paragraph 321P(1)(b) refers to the circumstance where the conduct
constituting the alleged contravention occurs wholly outside Australia, but the
result of the conduct occurs wholly or partly in Australia, or wholly or partly on
board an Australian aircraft or ship.
151. New paragraph 321P(1)(c) refers to the circumstance where the conduct
constituting the alleged contravention occurs wholly outside Australia and, at the
time of the alleged contravention, the person or entity is either an Australian
citizen, a resident of Australia, or a body corporate incorporated by or under a
law of the Commonwealth or of a State or Territory.
152. New paragraph 321P(1)(d) refers to the circumstance where all of the following
conditions specified in new subparagraphs 321P(1)(d)(i)-(iii) are met:
• the alleged contravention is an ancillary contravention of a Division 2 civil
penalty provision -- that is, a contravention that arises under section 92 of
the Regulatory Powers Act;
• the conduct constituting the alleged contravention occurred wholly outside
Australia; and
• either the conduct constituting the primary contravention, or the result of the
primary contravention occurred, or was intended to occur, wholly or partly in
Australia or on board an Australian aircraft or ship.
153. New subsection 321P(2) provides an exception to the application of Division 2
civil penalty provisions where a person or entity engages in conduct wholly
within a foreign country, and that conduct is legal in that country.
35
154. New paragraphs 321P(2)(a), (c) and (d) specify that, excluding an alleged
ancillary contravention, a person or entity does not contravene a Division 2 civil
penalty provision if all the following conditions are met:
• the conduct constituting the alleged contravention occurred wholly within a
foreign country and not on board an Australian aircraft or ship;
• the person or entity is neither an Australian citizen, nor a body corporate
incorporated by or under a law of the Commonwealth or of a State or
Territory; and
• there is no law creating an offence or contravention that corresponds with the
Division 2 civil penalty provision in force in the foreign country, or the part
of the foreign country, where the conduct constituting the primary
contravention occurred.
155. New paragraphs 321P(2)(b)-(d) further specify that a person or entity does not
commit an ancillary contravention of a Division 2 civil penalty provision if all of
the following conditions are met:
• the conduct constituting the primary contravention, or the result of the
primary contravention, occurred, or was intended to occur, wholly in a
foreign country and not on board an Australian aircraft or ship;
• the person or entity is neither an Australian citizen, nor a body corporate
incorporated by or under a law of the Commonwealth or of a State or
Territory; and
• there is no law creating a corresponding offence or contravention in force in
the foreign country, or the part of the foreign country, where the result of the
conduct constituting the primary contravention occurred.
Section 321PA--Election not affected by contravention of Division 2 civil penalty
provision
156. New section 321PA clarifies that an election will not be affected by
contravention of a Division 2 civil penalty provision.
157. New paragraph 321PA(a) specifies that the Court of Disputed Returns must not
declare that a person returned as elected was not duly elected on the ground that a
person or entity has contravened a Division 2 civil penalty provision.
158. New paragraph 321PA(b) specifies that the Court of Disputed Returns must not
declare an election void on the ground that a person or entity has contravened a
Division 2 civil penalty provision.
159. A Note is included after section 321PA to direct the reader to existing
section 362 of the Electoral Act for when an election may be declared void.
36
Division 3--Electoral Communications Panel
Subdivision A--Establishment, constitution and functions
Section 321Q--Establishment
160. New paragraph 321Q(2)(a) specifies that, for the purposes of the finance law (as
defined in the PGPA Act) the Panel will form part of the Commonwealth entity
established by existing section 6, known as the Australian Electoral Commission.
161. New paragraph 321Q(2)(b) specifies that, for the purposes of the finance law, the
members of the Panel are officials of the Australian Electoral Commission.
162. New paragraph 321Q(2)(c) provides that the functions of the Panel, the Chair,
and Decision Panel are to be included as functions for the purposes of the
Australian Electoral Commission.
163. Note 1 is included after new subparagraph 321Q(2)(c)(iii) to make clear that the
Australian Electoral Commission is a listed entity, and the Electoral
Commissioner is the accountable authority of the Commission. The Panel forms
part of the AEC.
164. Notes 2 and 3 provide that new paragraphs 321Q(2)(b) and (c) are extensions of
the application of existing current provisions in paragraphs 6(2A)(c) and (d), of
the Electoral Act respectively. These Notes clarify that members of the Panel are
officials of the Electoral Commission and the Panel's functions are included in
the purposes of the Electoral Commission for the purposes of the finance law.
165. Note 4 directs readers to existing section 384A to clarify that, for the purposes of
Part 4 of the Regulatory Powers Act, a Decision Panel is an authorised applicant
in relation to the enforcement of the new civil penalty provisions established in
the new Division 2 of this Act. Note 4 further specifies that the Chair is an
authorised applicant in relation to the civil penalty provisions in new Division 3.
Section 321QA--Constitution and functions
166. New section 321QA outlines the constitution and functions of the Panel.
167. New subsection 321QA(1) specifies the Panel consists of at least three and no
more than 14 members, in addition to the Chair.
168. New subsections 321QA(2) and (3) specify the Panel has the following functions,
some of which must be performed as a Decision Panel:
• monitoring for contraventions of the Division 2 civil penalty;
• conducting investigations in relation to possible contraventions of the
Division 2 civil penalty;
• making and publishing decisions following such investigations; and
• any other necessary functions conferred on the Panel by the Electoral Act or
the Referendum Act.
169. New subsection 321QA(4) clarifies that the Panel is not subject to direction by
the AEC, or a member or an official of the AEC, in relation to the performance of
its functions or the exercise of its powers under the Electoral Act.
37
170. New subsection 321QA(5) clarifies that the Electoral Commissioner, as the
accountable authority of the AEC, may give the Panel directions or instructions
in relation to the performance of its functions, or the exercise of powers, where
that direction or instruction relates to the finance law.
Subdivision B--Appointment of members
Section 321QB--Appointment of the Chair
171. New subsection 321QB(1) provides that the Governor-General is to appoint the
Chair of the Panel, by written instrument, on the recommendation of the Minister.
172. New subsection 321QB(2) states that the Chair must be a retired Judge of the
Federal Court of Australia who was a Judge of that Court for a minimum of three
years.
173. New subsection 321QB(3) provides that the Chair cannot be a member of the
Australian Electoral Commission.
174. New subsection 321QB(4) outlines that, for the purposes of making a
recommendation to the Governor-General for the appointment of the Chair, the
Minister must compile a list of three retired Judges who meet the requirements
and seek the views of the Chief Justice of the Federal Court of Australia on the
list.
175. New subsection 321QB(5) outlines the requirements of the Minister in making a
recommendation to the Governor-General for the appointment of the Chair.
176. New paragraph 321QB(5)(a) requires the Minister to refer the proposed
recommendation to the JSCEM for consideration under new section 321QE.
177. New paragraph 321QB(5)(b) requires the JSCEM to either notify the Minister
that it has decided to approve the proposed recommendation; or be taken to have
approved the proposed recommendation, per new subsection 321QE(5).
Requiring the recommendation to be approved by the JSCEM provides
multi-partisan consultation and oversight of the appointment to ensure the
recommended Chair has the confidence of the Parliament.
178. New subsection 321QB(6) provides that the Chair is to be appointed on a
part-time basis, and the period of appointment must not exceed seven years.
179. A Note is inserted after new subsection 321QB(6) to direct readers to section
33AA of the Acts Interpretation Act to clarify that the Chair is eligible for
reappointment.
180. New subsection 321QB(7) clarifies that, where the Minister seeks the views of
the Chief Justice of the Federal Court of Australia and the Chief Justice refuses
or does not provide a view, the validity of a recommendation or the ability for the
Minister to proceed with the recommendation is not affected.
181. New subsection 321QB(8) explains that the function conferred on the Chief
Justice of the Federal Court of Australia in new paragraph 321QB(4)(b) is
conferred in a personal capacity, and not as a court or member of a court.
38
182. New subsection 321QB(9) provides that new paragraph 321QB(4)(b) does not
require the Chief Justice of the Federal Court of Australia to provide views on the
list of candidates for appointment, the Chief Justice may decline this function.
183. New subsection 321QB(10) clarifies that the Chief Justice of the Federal Court of
Australia has the same protection and immunity if the Chief Justice were
performing the function as the court of which the Chief Justice is a member, or as
a member of the court of which the Chief Justice is a member, when performing
the function in subsection 321QB(7).
Section 321QC--Appointment of members (other than the Chair)
184. New section 321QC provides for the appointment of members, who are not the
Chair, to the Panel to be appointed by the Governor-General, on the
recommendation of the Minister. To ensure there is an appropriate breadth of
expertise and experience on a panel of this nature, Panel members, other than the
Chair will be either retired judges of a federal court or people who, in the opinion
of the Minister, possess special skills relevant to the duties of a member of the
Panel.
185. A member of the Panel is to be appointed on a part-time basis, for a period which
must not exceed 5 years. Where a member of the Panel is re-appointed, as
eligible under the 33AA of the Acts Interpretation Act, new subsection 321QC(5)
provides that a member of the Panel cannot hold office for a total of more than 7
years. This aligns with the maximum appointment period for Australian Electoral
Officers, also appointed by the Governor-General (see section 21 of Electoral
Act).
186. New subsection 321QC(3) prohibits the following persons from being appointed
as a member of the Panel:
• a current Justice or Judge of a federal court; or
• a current Judge, acting Judge or magistrate of a court of a State or Territory.
187. A Note is included after new subsection 321QC(4) to direct readers to section
33AA of the Acts Interpretation Act to clarify that members of the Panel are
eligible for reappointment, noting that members cannot hold office more than 7
years in total.
Section321QD--Acting appointments
188. New section 321QD provides the Minister may appoint a member to act in the
role of the Chair, or appoint a person to act in the office of a member, in specific
circumstances.
189. New subsection 321QD(1) provides that the Minister may appoint any member
of the Panel to act as the Chair in either of the circumstances referred to in new
paragraphs 321QD(1)(a) and (b):
• during a vacancy;
• whilst the Chair or member is absent from duty; or
• for any other reason cannot perform the functions required by the Chair or
member.
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190. A Note is included after subsection 321QD(1) to clarify that any member may be
appointed to act as the Chair and that the member does not need to be a retired
judge of a federal court.
191. New subsection 321QD(2) provides that the Minister may appoint a person to act
in the office of a member (other than the chair) in either of the circumstances
referred to in new paragraphs 321QD(2)(a) and (b):
• during a vacancy in the office or
• during any or all periods when the officer holder is absent from duty and
unable to perform their duties.
192. A Note after subsection 321QD(2) directs the reader to section 33A of the Acts
Interpretations Act for the rules that apply to acting appointments.
Section 321QE--Electoral Matters Committee may approve or reject proposed
recommendation for appointment of the Chair
193. New subsection 321QE(1) requires the JSCEM to approve or reject a proposed
recommendation for the appointment of the Chair that has been referred to the
JSCEM by the Minister under new subsection 321QB(5).
194. The role of the JSCEM in considering proposed recommendations for
appointments supports multi-partisan consideration of the appointment of the
Chair to ensure that the occupant of the position of the Panel has the confidence
of Parliament.
195. New subsection 321QE(2) provides the timeframe in which the JSCEM must
make a decision on a proposed recommendation for the appointment of the Chair
of the Panel. The JSCEM must make the decision within 14 days after the date of
referral, unless the JSCEM has notified the Minister that additional time is
required for consideration within the first 14 days after the referral. In this
instance, an additional 14 days is added to the timeframe and the JSCEM is
required to make the decision within 28 days after the referral.
196. New subsection 321QE(3) specifies that the JSCEM is not required to consider,
or to continue to consider, a proposed recommendation of a person for
appointment as the Chair of the Panel if the person notifies the Minister that they
no longer wish to be considered for the appointment.
197. New subsection 321QE(4) requires the JSCEM to give the Minister written
notice of their decision.
198. New subsection 321QE(5) specifies that the JSCEM is taken to have approved
the proposed recommendation if the JSCEM does not provide the Minister with
written notice within 14 days, or if an extension has been sought within 28 days.
199. New subsection 321QE(6) provides that, once the Governor-General has
appointed a person as the Chair of the Panel, the JSCEM must report to both
Houses of Parliament that the appointed candidate was approved or taken to be
approved by the JSCEM.
40
200. New subsection 321QE(7) requires the JSCEM keep confidential the name of,
and any other information in relation to, a person referred by the Minister for
consideration, if the proposed recommendation is rejected by the JSCEM or the
person notifies the Minister they no longer wish to be considered for the
appointment.
Subdivision C--Functions of the Chair
Section 321QF--Functions of the Chair
201. New section 321QF outlines the functions and role of the Chair of the Panel.
202. New subsection 321QF(1) specifies the Chair has the following functions:
• to receive reports of possible contravention of the civil penalty provisions in
this Act. Reports can be made from any member of the public.
• to select a Decision Panel (minimum of three members) from the members of
the Panel to investigate and make a decision in relation to a possible
contravention of a Division 2 civil penalty provision;
• any other functions conferred upon the Chair by Electoral Act (for example,
powers conferred under section 321QH.
203. New subsection 321QF(2) provides a power for the Chair to do all things
necessary or convenient for, or to be completed in relation to, the performance of
the Chair's functions or the exercise of the Chair's powers under the Electoral
Act.
204. New subsection 321QF(3) clarifies that the Chair has independence in relation to
the exercises of their functions or powers. For the avoidance of doubt, the Chair
is not subject to direction by the Electoral Commissioner, a member of the
three-person Electoral Commission, or an official of the AEC under existing
paragraph 6(2A)(c) of the Electoral Act.
Section 321QG--Selection of Decision Panel to consider possible contravention of a
Division 2 civil penalty provision
205. New section 321QG sets out the process under which the Chair selects a Decision
Panel and refers possible contraventions of the Division 2 civil penalty provisions
for consideration and decision.
206. New subsection 321QG(1) provides that the Chair must select at least three
members of the Panel to constitute a Decision Panel (this can include the Chair)
and refer a report or information about a possible contravention to that Panel in
either circumstance referred to in new paragraphs 321QG(1)(a) or (b):
• the Chair receives a report, in the approved form, from any person or entity of
a possible contravention of a civil penalty provision during relevant election
period; or
• the Chair is otherwise aware of a possible contravention of the civil penalty
provision in the relevant election period.
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207. New subsection 321QG(2) provides a number of circumstances that the Chair
may decide not to refer a report of a possible contravention to a Decision Panel,
these include, if the Chair is satisfied of any of the following:
• the content is not authorisable electoral matter, or
• a Decision Panel has previously considered the content that is the subject of
the possible contravention and has already made a decision in relation to it; or
• the report is vexatious, frivolous, or not made in good faith.
208. New subsection 321QG(3) clarifies that, if multiple reports are received by the
Chair of a possible contravention of a Division 2 civil penalty provision and the
Chair is satisfied the reports relate to the same content, the Chair may refer all
such reports, collectively, to the same Decision Panel. The Chair may do so
whether the duplicative content is used in the same or different contexts.
209. A Note is included after new subsection 321QG(3) and provides an example of
this, where the same content is displayed in three different contexts, being on a
bus, billboard, or sign. Another example where this requirement would also be
satisfied when the same content that is used in a flyer or pamphlet is also used in
an advertisement on social media.
210. New subsection 321QG(4) provides that a member of the Panel can be a member
of more than one Decision Panel at the same time.
211. New subsection 321QG(5) requires that all Decision Panels consist of at least
three members at all times to investigate and make a decision. If a member ceases
to be a member of a Decision Panel before an investigation is complete or a
decision has been made, the Chair must select another member of the Panel to
replace that member on the Decision Panel for the investigation to continue and a
decision can be made.
212. New subsection 321QG(6) provides the Chair may direct a Decision Panel in
relation to the performance of its functions or the exercise of its powers under the
Electoral Act. The Decision Panel is required to comply with any such directions
from the Chair.
Section 321QH--Chair may require information and documents from person or entity
in relation to possible contraventions
213. New section 321QH specifies that the Chair may require information or
documents from a person or entity in relation to investigating a possible
contravention of a Division 2 civil penalty provision.
214. New subsection 321QH(1) specifies that new section 321QH applies to a person
or entity if the Chair has reason to believe that the person or entity has
information or a document that is relevant to the investigation being conducted
by a Decision Panel. Section 321QH will apply whether the person or entity is
within or outside Australia.
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215. New subsection 321QH(2) outlines that, in relation to information or documents
referred to in new subsection 321QH(1), the Chair may give a written notice to a
person or entity to requiring any of the following:
• to give to the Chair any such information, within the specified period and in
the manner and form specified by the Chair;
• to produce to the Chair any such documents, within the period and in the
manner specified in the notice; or
• to make copies of any such documents and produce the copies to the Chair,
within the period and in the manner specified in the notice.
216. New subsection 321QH(3) provides that a notice given to a person or entity
under new subsection 321QH(2) must set out the effect of failure to comply with
a notice, per new subsection 321QH(4) and the effect of giving false or
misleading information or documents under sections 137.1 and 137.2 of the
Criminal Code Act 1995.
217. These information-gathering powers are consistent with the powers of the
Electoral Commissioner in relation to Part XXA of the Electoral Act. The new
powers are informed by the requirements of providing for the timely and efficient
conduct of Panel business, given the tight timeframes within which decisions
must be made and the significant harm that can result from undue delay in doing
so. The powers are subject to safeguards and limitations that are similar to those
elsewhere in the Electoral Act and similar regulatory regimes.
218. New subsection 321QH(4) establishes the civil penalty of 200 penalty units,
applicable to a person or entity where the person or entity is given a notice and
fails to comply with that notice.
219. New subsection 321QH(5) provides that any person who incurs a reasonable cost
for complying with the requirement to provide documents or information to the
Chair is entitled to be reasonably compensated by the Commonwealth. For
example, if a person is required to make copies of documents to produce to the
Chair under paragraph 321QH(2)(c), the cost of copying or printing these
documents would be reimbursable by the Commonwealth.
Subdivision D--Decision Panels
Section 321R--Functions of a Decision Panel
220. New section 321R outlines the functions and operations of a Decision Panel,
including how referrals from the Chair will be investigated.
221. New subsection 321R(1) provides that a Decision Panel has the following
functions:
• to conduct investigations in relation to possible contraventions of the
Division 2 civil penalty provisions (321L, 321M and 321MA) referred to the
Panel by the Chair under new subsection 321QG(1);
• to make decisions following an investigation, including publishing the
decisions; and
• any such functions that are conferred on Decision Panel by this Act.
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222. A Note is included after new subsection 321R(1) to clarify that the Chair may
give directions to any Decision Panel in relation to the performance of its
functions or the exercise of its powers under the Electoral Act. The Note also
directs readers to new subsection 321QG(6)) to specify that the Decision Panel
must comply with any directions given by the Chair.
223. New subsection 321R(2) outlines that a Decision Panel may do all things
necessary or convenient in relation to or connection with the performance of any
of its functions or the exercise of any powers under the Electoral Act.
224. New subsection 321R(3) specifies that, without limiting new subsection 321R(2),
a Decision Panel may consult or request information from any person or entity
that it considers necessary or conducive to engage with for the performance of its
functions or the exercise of its powers.
225. New subsection 321R(4) provides that, without limiting new subsection 321R(2),
a Decision Panel may engage a person or entity to provide advice or other
services, or to conduct investigations or assessments, to assist the Decision Panel
to carry out any of its functions or exercising its powers. Such a person or entity
would be engaged on behalf of the Commonwealth.
Section 321RA--Investigation of possible contraventions
226. New section 321RA provides the steps of investigation a Decision Panel must
undertake if the Chair refers a report to the Decision Panel under new section
321QG.
227. New subsection 321RA(1) provides the process of investigation the Decision
Panel must follow where it receives a referral from the Chair. This process is
subject to the application of new subsection 321RA(3) and (4) which provide for
the refusal to investigate, or continue to investigate, a possible contravention in
certain circumstances.
228. New paragraphs 321RA(1)(a) and (b) require the Decision Panel to investigate
the possible contravention and decide whether it is satisfied that the possible
contravention relates to authorisable electoral matter.
229. New paragraph 321RA(1)(c) applies if the Decision Panel is satisfied that the
possible contravention relates to authorisable electoral matter. In such
circumstances, the Decision Panel must then decide whether it is satisfied that the
authorisable electoral matter contains one or more of the following:
• a written statement purporting to be a statement of fact that is inaccurate and
misleading to a material extent;
• a visual depiction purporting to be a factual visual depiction of a candidate
for an election that is inaccurate and misleading to a material extent; or
• an audio depiction purporting to be a factual audio statement by a candidate
for an election that is inaccurate and misleading to a material extent.
230. New paragraph 321RA(1)(d) provides that the Decision Panel must decide
whether it is satisfied that the circumstances referred to in new paragraphs
321L(1)(d), 321M(1)(d) or 321MA(1)(d) applies in relation to the authorisation
that is the subject of the possible contravention. That is, the authorisation
44
occurred during the election period, or the authorisation occurred before the
election period and the person or entity intends or knows the electoral matter is to
be communicated during the election period.
231. A Note specifies that the Decision Panel must conduct the investigation within
the applicable time period under new subsection 321RB(1), that is either two
days or 24 hours.
232. New subsection 321RA(2) provides that, if the referral relates to a report made
by a person or entity, rather than the Chair being already aware of the possible
contravention, the Decision Panel may request by written notice, the person or
entity provide further information in relation to the possible contravention within
a specified period.
233. New subsection 321RA(3) specifies that, if a person or entity receives a written
notice under new subsection 321RA(2) and does not comply with the notice in
the specified period, the report is taken to be withdrawn and the Decision Panel is
not required to continue its investigation.
234. New subsection 321RA(4) provides when a Decision Panel may refuse to
investigate, or cease investigating, a report referred by the Chair under new
subsection 321QG(1). The Decision Panel may only do so where it is satisfied
that one of the following apply:
• the matter is not authorisable electoral matter;
• the authorisation did not occur during the relevant election period or prior to
the election period with the intent or knowledge the matter will be
communications during the relevant election period; or
• the report is frivolous, vexatious, or was not made in good faith.
235. All other reports referred to a Decision Panel by the Chair must be investigated,
and a decision on the possible contravention must be made and published.
236. A Note is included after new subsection 321RA(4) to direct readers to new
section 321RG of the Electoral Act and section 13 of the ADJR Act to clarify
when a person may request written reasons for a decision made under new
subsection 321RA(4). A person may request written reasons for the decision if
they would be entitled to make an application for review of that decision under
section 5 of the ADJR Act.
Section 321RB--Period for conducting investigation and making decision
237. New subsection 321RB(1) specifies the period within which the Decision Panel
must conduct investigations and make a decision in relation to a possible
contravention, referred by the Chair under new subsection 321QG(1).
238. Per new paragraphs 321RB(1)(a) and (b), these timeframes decrease the closer
the proximity of polling day to the day the referral was made. A Decision Panel
must investigate and make a decision on a possible contravention referred to it by
the Chair, within the following timeframes:
• within two days of the referral being received if the referral was received by
the Decision Panel within the election period but before the start of the day
45
two days before polling day (i.e. from the issue of the writ to 11:59PM on the
Wednesday before polling day); or
• within 24 hours if the referral was received by the Decision Panel within the
period starting at the start of the day two days before polling day and ending
at the close of polls on polling day. (i.e. starts at 12:00AM the Thursday
before polling day and ends at 6:00PM on polling day Saturday.).
239. These timeframes have been set in order for the provisions to prevent the impacts
of misinformation effectively. It is essential for the Panel to make its decisions in
a timely manner during the pre-poll period and polling day, when most
Australians are exercising their franchise.
240. A Note is included after subsection 321RB(1) to direct readers to new subsection
321RA(3) and (4) to clarify that a Decision Panel is not required to investigate, or
continue to investigate, a report of a possible contravention referred to it by the
Chair under new subsection 321QG in certain circumstances.
241. New subsection 321RB(2) provides that, if the Decision Panel has not made a
decision within the required period specified in new subsection 321RB(1), that is
either two days or 24 hours, the Decision Panel must publish reasons explaining
why a decision has not been made.
242. A Note is included after subsection 321RB(2) to clarify that the person or entity
who reported the possible contravention that is the subject of the Decision
Panel's decision may apply to a federal court for an order requiring the Decision
Panel make a decision where the Decision Panel has not made a decision in
relation to the possible contravention within the specified period.
Section 321RC--Notice and publication of decision
243. New section 321RC establishes requirements for a Decision Panel to publish
decisions, the reasons for the decision and any remedial action intending to be
requested.
244. New subsection 321RC(1) specifies the person or entity the Chair must give
written notice of a Decision Panel's decision made under new subsection
321RA(1). Such written notice must include the reasons for the decision and any
remedial action that is to be requested under new section 321RE. The Chair must
give written notice to the person or entity who reported the possible
contravention to which the decision relates (if applicable) and the person or entity
that authorised the communication of the authorisable electoral matter to which
the possible contravention relates.
245. New paragraphs 321RC(2)(a), (b) and (c) provide that, subject to subsection
321RC(3), the Decision Panel must publish the following in such manner as the
Panel considers appropriate:
• the decision in relation to possible contraventions;
• the reasons for the decision; and
• the remedial action (if any) that the Panel intends to request under new
section 321RE.
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246. New subsection 321RC(3) clarifies that, where a Decision Panel has decided not
to investigate, or continue investigating, a possible contravention in accordance
with new subsection 321RA(3) or (4), the Decision Panel is not required to
publish that decision or the reasons for that decision.
Section 321RD--Meetings of a Decision Panel
247. New section 321RD outlines the procedures for meetings of a Decision Panel. A
Decision Panel may convene a meeting at any time for the efficient performance
of its functions under the Electoral Act. For example, a Decision Panel may
convene a meeting to consider a possible contravention together or to review
information provided by a person or entity under subsection 321RA(2).
248. New subsection 321RD(2) provides that the Chair must preside over all meetings
of a Decision Panel where the Chair is a member and present.
249. New subsection 321RD(3) provides that, if the Chair is not present at a meeting,
the members present must appoint one of themselves to preside over the meeting.
250. New subsection 321RD(4) provides that a quorum at a meeting of a Decision
Panel is constituted by three members. Note that a quorum may be constituted by
less than three members of the Decision Panel as provided in subsection
321RD(5).
251. New subsection 321RD(5) will apply where the circumstances in new paragraphs
321RD(5)(a) and (b) are satisfied.
252. New paragraph 321RD(5)(a) refers to the circumstance where rules made for the
purposes of section 29 of the PGPA Act require a member of the Decision Panel
not be present during the deliberations or decision-making of the Decision Panel,
with respect to a particular matter.
253. New paragraph 321RD(5)(b) refers to the circumstance where there is no longer
a quorum of a Decision Panel as a member of the Decision Panel has left a
meeting of the Decision Panel in accordance with the rules referred to in
paragraph 321RD(5)(a).
254. Where new subsection 321RD(5) applies, the remaining members of the Decision
Panel at the meeting constitute a quorum for the purpose of any deliberation or
decision at that meeting with respect to the matter referred to in paragraph
321RD(5)(a).
255. New subsection 321RD(6) provides that a question arising during a meeting of a
Decision Panel, it is to be determined by a majority of the votes of the members
present and voting.
256. New subsection 321RD(7) provides that, during any voting which occurs under
subsection 321RD(6), the person presiding over the meeting has a deliberative
vote. If the vote has an equal result (split vote), then the person presiding has a
casting vote.
Section 321RE--Decision Panel may request remedial action
257. New section 321RE specifies that the Decision Panel may request remedial
action be taken in relation to authorisable electoral matter that is the subject of a
possible contravention. This request must be made in writing.
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258. New subsection 321RE(1) outlines that new section 321RE applies if a Decision
Panel investigates a possible contravention referred to it by the Chair under new
section 321QG; and the Decision Panel is subsequently satisfied that the subject
of the possible contravention is authorisable electoral matter, and contains either
a written statement purporting to be a statement of fact, or a visual or audio
depiction purporting to be a factual depiction or statement that is inaccurate and
misleading to a material extent.
259. New subsection 321RE(2) provides that the Decision Panel may request the
person or entity who authorised the communication that is the subject of the
possible contravention to do certain remedial action(s). Such a request must be
made in writing and specify the period within which the requested remedial
action must be done. The Decision Panel can request the person or entity do any
or all of the following:
• publish a retraction approved by the Chair in the terms, manner, and form
specified in writing in the notice:
• correct the content of the authorisable electoral matter, so the matter is no
longer in contravention, in the manner specified in the notice; or
• remove, take down, withdraw, or cease communication of the matter.
260. Providing the Decision Panel with the power to request corrections to the content
of the authorisable electoral matter is important in contributing to the overall
object of preventing the dissemination of certain inaccurate and misleading
electoral matter. Research has found that making corrections to these messages
has been successful, particularly when immediate and delivered by the source of
the misinformation itself.34 Additional research has found that direct corrections
are effective in reducing reliance on the misinformation in a person's reasoning.35
261. The Chair has been provided a function to specify the terms, manner and form of
the retraction, based on the powers held by the Electoral Commissioner of South
Australia. Providing this function to the Chair is critical in ensuring the integrity
of retractions and to prevent further misleading electors through insufficient
retractions of inaccurate and misleading material.
262. New subsection 321R(3) specifies that a notice issued under new subsection
321RE(2) cannot specify action to be taken in a period less than 24 hours after
the date the notice is issued.
Section 321RF--Injunctions
263. New section 321RF provides for the grant of injunctions in relation to
contravention or possible contravention of a Division 2 civil penalty provision or
other provisions under new Part XXA of the Electoral Act. The Federal Court
may only grant an injunction under new section 321RF on the application of a
Decision Panel. This section largely replicates current section 383 of the
Electoral Act.
34
See, Walter & Tukachinsky, 170-173.
35
See, Ecker et al, 21.
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264. New subsection 321RF(1) provides for the grant of an injunction to restrain a
person or entity from engaging in conduct that will contravene a Division 2 civil
penalty provision. Additionally, the injunction may require the person or entity to
any act or thing if, in the opinion of the Federal Court, it is desirable to do so.
265. A Note is included after new paragraph 321RF(1)(b) to provide that, under new
paragraph 321RF(1)(b), the Federal Court might require the person or entity to
withdraw or take down inaccurate and misleading authorisable electoral matter,
or require the person or entity to publish a correction or retraction.
266. New subsection 321RD(2) provides for the grant of performance injunctions by
the Federal Court if either of the circumstances in paragraphs 321RF(2)(a) or (b)
apply.
267. New paragraph 321RF(2)(a) provides for the grant of an injunction requiring a
person to do an act or thing that the person or entity has refused or failed to do,
where that refusal or failure would result in a failure to comply with a provision
of new Part XXB.
268. New paragraph 321RF(2)(b) provides for the grant of an injunction requiring a
person or entity to comply with a request made under new subsection 321RE(2),
where that person or entity has refused or failed to comply with that request.
269. New subsection 321RF(3) provides for the grant of an injunction to restrain a
carriage service provider from providing a listed carriage service to certain
persons or entities. New subsection 321RF(3) is not intended to limit subsection
321RF(1). 'Listed carriage service' and 'carriage service provider' are defined in
sections 16 and 87 respectively of the Telecommunications Act 1997.
270. New paragraph 321RF(3)(a) clarifies that such an injunction may only be granted
where a separate injunction could otherwise be granted to a person or entity
under new subsections 321RF(1) or (2) in relation to a contravention of a
Division 2 civil penalty provision by that person or entity. The contravention of
the Division 2 civil penalty provision must be in relation to the communication of
authorisable electoral matter by the person or entity.
271. New paragraph 321RF(3)(b) specifies that an injunction may only be granted
where the carriage service provider supplies a listed carriage service to the person
or entity referred to in new paragraph 321RF(3)(a).
272. New paragraph 321RF(3)(c) specifies that the listed carriage service referred to
in new paragraph 321RF(3)(b) must be used solely for making bulk voice calls or
sending bulk text messages. 'Bulk text message' and 'bulk voice call' are both
defined in new subsection 321RF(12).
273. It is intended that an injunction under new subsection 321RF(3) would be granted
where the bulk voice calls or text messages are being used to communicate the
authorisable electoral matter referred to in new paragraph 321RF(3)(a). For
example, where the listed carriage service is being used to make bulk voice calls
that contain an audio depiction of a candidate for an election that purports to be a
factual statement that is inaccurate and misleading to a material extent.
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274. New subsection 321RF(4) provides for the grant of an injunction to restrain a
broadcaster from broadcasting certain authorisable electoral matter. New
subsection 321RF(4) is not intended to limit subsection 321RF(1). 'Broadcaster'
is defined in new subsection 321RF(12).
275. An injunction under new subsection 321RF(4) may only be granted where a
separate injunction could otherwise be granted to a person or entity under new
subsection 321RD(1) or (2) in relation to a contravention of a Division 2 civil
penalty provision by that person or entity. The contravention of the Division 2
civil penalty provision must be in relation to the communication of authorisable
electoral matter.
276. It is intended that an injunction under new subsection 321RF(4) would be granted
where a broadcaster would otherwise broadcast authorisable electoral matter that
would contravene a Division 2 civil penalty provision. For example, where the
broadcaster would otherwise broadcast an advertisement that contains a visual
depiction of a candidate for an election purporting to be a factual depiction that is
inaccurate and misleading to a material extent.
277. New subsection 321RF(5) provides for the grant of interim injunctions where an
application has been made to the Federal Court for an injunction under new
subsections 321RF (1), (3) or (4). If, in the opinion of the Federal Court, it is
desirable to grant an interim injunction before considering the application for
those other injunctions, the Court may grant an interim injunction. Any
injunction granted under new subsection 321RF(5) is to be granted pending the
determination of the application made under new subsections 321RF (1), (3) or
(4). An interim injunction granted under new subsection 321RF(5) may only
restrain a person or entity, or a carriage service provider or broadcaster, in the
terms specified in new paragraphs 321RF(5)(a) and (b).
278. New paragraph 321RF(5)(a) specifies that an interim injunction may only be
granted to restrain a person or entity from engaging in conduct of the kind
referred to in new subsection 321RF(1).
279. New paragraph 321RF(5)(b) specifies that an interim injunction may only be
granted to restrain a carriage service provider or broadcaster as referred to in new
subsection 321RF(3) or (4).
280. Measures including powers to withdraw, retract, or order penalties for misleading
electoral advertising have a direct effect of disincentivising and removing
misinformation that has the potential to mislead electors.36
281. New subsection 321RF(6) specifies that the Federal Court may discharge or vary
an injunction granted under new section 321RF.
282. New subsections 321RF(7) and (8) specify when the Federal Court may exercise
its power to grant an injunction to restrain a person or entity from engaging in
conduct of a particular kind under new subsection 321RF(1). These subsections
clarify that the Court is not required to consider past conduct or to speculate on
future conduct in deciding whether to grant an injunction.
36
See, Hill et al, 119.
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283. New paragraphs 321RF(7)(a) and (8)(a) provide that the Federal Court is not
required to speculate on future conduct in deciding to grant an injunction. The
injunction may be granted where the Court is satisfied that the person or entity
has engaged in conduct of the kind specified in the application for the injunction,
whether or not it appears that the person or entity intends to engage again, or to
continue to engage, in that conduct.
284. New paragraphs 321RF(7)(b) and (8)(b) provide that the Federal Court is not
required to consider past conduct in deciding to grant an injunction. The
injunction may be granted if it appears to the Court that it is likely the person or
entity will engage in the specified conduct were an injunction not granted. The
Federal Court may do so whether or not the person or entity has previously
engaged in that conduct, and whether or not engaging in that conduct carries an
imminent danger of substantial damage to any person.
285. New subsection 321RF(9) specifies when the Federal Court may exercise its
power to grant an injunction restraining a carriage service provider or broadcaster
under new subsections 321RF(3) and (4). This new subsection clarifies that the
Court is not required to consider the past conduct of the notifying entity or to
speculate on future conduct of the notifying entity in deciding whether to grant an
injunction. It is intended to operate in similar terms to new subsection 321RF(7),
but with regard to an injunction restraining a carriage service provider or
broadcaster under new subsections 321RF(3) or (4). Furthermore, the past and
future conduct to be considered relates to conduct that contravenes a Division 2
civil penalty provision done by the person or entity referred to in an application
for an injunction under new subsections 321RF(3) or (4). A 'notifying entity' is
defined in new subsection 321RF(12).
286. New subsection 321RF(10) specifies that the Federal Court must not require a
Decision Panel or any other person or entity to give any undertakings as to
damages as a condition of granting an interim injunction.
287. New subsection 321RF(11) clarifies that the powers conferred on the Federal
Court under new section 321RF do not limit any other powers of the Court.
These powers are to be taken as in addition to, and not in derogation of, any other
powers of the Federal Court, whether those other powers originate from the
Electoral Act or otherwise.
288. New subsection 321RF(12) inserts new definitional terms to support the
operation and enforcement of the Panel provisions for the purposes of new
section 321RF.
289. A 'broadcaster' is used to refer to either a broadcaster as defined under subclause
4(1) of Schedule 2 to the BSA, the Australian Broadcasting Corporation, or the
Special Broadcasting Service Corporation. These broadcasters may be granted an
injunction under new subsection 321RF(4) in relating to the broadcasting of
certain electoral matter.
290. A 'bulk text message' and 'bulk voice call' clarifies the scope of injunctions that
may be granted to carriage service providers under new subsection 321RF(3). A
'bulk text message' is an 'electronic message' (as defined in section 5 of the
Spam Act 2003) that is sent, in bulk, to electronic addresses in connection with
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telephone accounts. A 'bulk voice call' means a call or calls that send in bulk a
pre-recorded message to standard telephone services.
291. A 'notifying entity' is used to refer to the person or entity that approved the
content of authorisable electoral matter that is the subject of a relevant
contravention. The definition is relevant to the decision by the Federal Court
under new subsection 321RF(9) as to whether to grant an injunction against a
carriage service provider or broadcaster.
Section 321RG--Review of decision of a Decision Panel
292. New section 321RG provides for judicial review of a decision made by a
Decision Panel by specifying the application of the ADJR Act to a decision made
by a Decision Panel.
293. New subsection 321RG(1) provides that person who is aggrieved by a decision of
a Decision Panel, or conduct of a Decision Panel whilst making such decision,
relating to authorisable electoral matter can appeal to the Federal Court of
Australia under the ADJR Act.
294. New subsection 321RG(1) also provides that a person aggrieved by a decision, or
related conduct, of a Decision Panel means:
• a candidate in the relevant election to which the authorisable electoral matter
relates;
• the registered officer of a registered political party; or
• the person or entity who authorised the communication of the authorisable
electoral matter.
295. New subsection 321RG(2) provides that the above categories of 'person who is
aggrieved' override any contrary categorisation in the ADJR Act.
296. New section 321RG does not provide for merits review of a decision by a
Decision Panel. This is to ensure that decisions have the requisite finality and
certainty to fulfil the objectives of the framework. It is necessary that decisions of
a Decision Panel are given a degree of finality and certainty such that electors
may consider those decisions when viewing the authorisable electoral matter.
Subdivision E--Administrative provisions
Section 321S--Terms and conditions--general
297. New section 321S provides that the Minister may determine additional terms and
conditions (if any) not covered by the Electoral Act for any member of the Panel
(including the Chair).
Section 321SA--Remuneration
298. New section 321SA outlines that members of the Panel (including the Chair) are
to be paid the remuneration as determined by the Remuneration Tribunal, subject
to the Remuneration Tribunal Act 1973. Members of the Panel (including the
Chair) are also to be paid the allowances that are prescribed the regulations.
299. If no determination of that remuneration is in operation, the member is to be paid
the remuneration and allowances prescribed by the regulations.
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Section 321SB--Leave of absence
300. New section 321SB provides for the requirements and terms of leave for the
Chair and members of the Panel.
301. New subsection 321SB(1) provides that the Minister may grant the Chair a leave
of absence subject to any terms and conditions determined by the Minister.
However, the Minister cannot grant the Chair a leave of absence during an
election period, other than for an essential reason.
302. New subsection 321SB(2) provides that the Chair may grant a leave of absence to
any other members subject to any terms and conditions determined by the Chair.
However, the Chair cannot grant any other member a leave of absence during an
election period, other than for an essential reason.
Section 321SC--Other paid work
303. New section 321SC outlines the restrictions on the members of the Panel
(including the Chair) engaging in paid work outside their duties as a member of
the Panel.
304. New subsection 321SC(1) provides a condition where the Chair must not engage
in paid work outside of the duties of the office of the Chair and other functions of
the Panel, without the approval of the Minister.
305. New subsection 321SC(2) provides that members (other than the Chair) must not
engage in any paid work that conflicts or could conflict with the proper
performance of the member's duties.
Section 321SD--Resignation
306. New section 321D provides that a member of the Panel (including the Chair) may
resign by giving the Governor-General a written resignation. The resignation
takes effect on either the day it is received by the Governor-General, or the day
specified in the written resignation.
Section 321SE--Termination of appointment
307. New section 321SE provides the instances in which an appointment to the Panel
may be terminated by the Governor-General.
308. New subsection 321SE(1) provides that the Governor-General may terminate the
appointment of a member for misbehaviour or if the member is unable to perform
their duties due to physical or mental incapacity.
309. New paragraph 321SE(2)(a) requires the Governor-General terminate the
appointment of a member of the Panel (including the Chair) if the member:
• become bankrupt;
• applies to take the benefit of any law for the relief of bankrupt or insolvent
debtors;
• compounds with the members creditors; or
• makes an assignment of the members remuneration for the benefit of the
members creditors.
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310. If the member is the Chair, the Governor-General must also terminate the
appointment if the Chair engages in paid work contrary to new section 321SC or
the Chair is absent, without a reasonable excuse, for three consecutive meetings
of a Decision Panel where the Chair is a member.
311. New paragraph 321SE(2)(c) requires the Governor-General terminate the
appointment of a member of the Panel (that is not the Chair) if the member
engages in paid work that conflicts or could conflict with the proper performance
of the member's duties per new section 321SC. The Governor-General must also
terminate the appointment of a member of the Panel (that is not the Chair) if the
member is absent, without reasonable excuse, for three consecutive meetings of a
Decision Panel of which the member is a member.
312. New paragraph 321SE(2)(d) requires the Governor-General terminate the
appointment of a member of the Panel (including the Chair) where the member
fails, without reasonably excuse, to comply with the disclosure of interest
requirements in new section 321SF.
Section 321SF--Disclosure of interests
313. New section 321SF requires a member of a Decision Panel to disclosure any
conflict of interest that arises from their membership of that Decision Panel.
314. New subsection 321SF(1) requires a member of a Decision Panel to disclose of
any conflict of interest in relation to a matter the Decision Panel is about to
consider, or is considering, as soon as possible after becoming aware of the
conflict. Such a disclosure must be made at a meeting of the Decision Panel.
315. New subsection 321SF(2) specifies that the member referred to in new subsection
321SF(1) must not take part in the making of a decision by that Decision Panel
where a conflict has been disclosed in relation to the matter unless the Chair
agrees. If the member of the Decision Panel is the Chair, they must seek the
Minister's agreement to take part in the making of a decision.
316. New subsection 321SF(3) clarifies that, for the purposes of new section 321SF, a
conflict in relation to a matter could be any interest, pecuniary or otherwise, that
could conflict with the proper performance of the member's functions in relation
to a matter.
317. New subsection 321SF(4) clarifies that new subsection 321SF(1) applies in
addition to section 29 of the PGPA Act, which requires officials to report
material personal interests in relation to the affairs of the entity they work for.
New subsection 321SF(1) will also apply in addition to any rules made for the
purposes of section 29 of the PGPA Act.
Subdivision F--Other provisions
Section 321SH--Staff
318. New section 321SH requires the Electoral Commissioner to provide the
necessary staff of the AEC to assist the Chair or the Panel in performing their
functions.
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Section 321SJ--Delegation by the Chair
319. New section 321SJ provides that the Chair may, by signed instrument, delegate
their functions and powers under 321QH and 321RC(1) to another member of the
Panel. In performing any delegated function, the delegate must comply with any
directions from the Chair.
Division 4--Review of this Part
Section 321T--Review of this Part
320. New subsection 321T(1) requires the JSCEM, or any other parliamentary
committee determined by the Minister, to review the operation of new Part XXB
before the end of 12 months after the first general election that is held after the
commencement of new Part XXA, being 1 January 2026. The JSCEM must also
table its comments and recommendations in each House of the Parliament.
321. New subsection 321T(2) provides that a determination made under new
subsection 321T(1) is not a legislative instrument. This subsection is to apply as a
declaration of the law, and not as an actual exemption.
322. Items 28 and 29 amend current section 384A(2) of the Electoral Act to provide
for new subsection 384A(2AA), which specifies how new Part XXB of the
Electoral Act is to operate for the purposes of Parts 4 and 6 of the Regulatory
Powers Act.
323. New subsection 384A(2AA) provides that a Decision Panel and the Chair of the
Panel are authorised applicants in relation to each civil penalty to the Federal
Court of Australia in relation to the civil penalty provisions created by this Part.
324. Item 30 is an application provision which provides details on when the new law
will apply. The amendments made by this Part to the Electoral Act apply to
elections for which the writs are issued on or after the commencement of this
Part.
Part 2--Other amendments
Commonwealth Electoral Act 1918
325. The amendments made by Part 2 of Schedule 1 require electoral matter that has
been substantially or entirely created using digital technology (including AI) to
carry a statement to that effect. This will provide greater transparency for voters
to consider the accuracy of digitally-modified electoral matter that is
communicated to them, and will also assist Decision Panels in their
investigations into possible contraventions of new sections 321M and 321MA.
326. Item 31 inserts new Note 3 to existing subsection 321D(1) to specify that section
321D covers electoral matter that is substantially or entirely created or modified
using digital technology.
327. Items 32 and 33 make amendments to renumber Notes 3 and 4 to existing
subsection 321D(1) consequential to the inclusion of new Note 3 in Item 40.
328. Item 34 inserts new table items 9 and 10 to the table in existing subsection
321D(5) to require specific notifying particulars for certain electoral matter
where the content of the matter has been substantially or entirely created or
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modified using digital technology. New table items 9 and 10 specify that these
requirements only apply to electoral matter that is an electoral advertisement or a
sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card.
329. Item 35 inserts new Note 3 to existing subsection 321D(5) to provide an example
of the types of content to which new table items 9 and 10 would apply. This Note
clarifies that content, which is modified using digital technology, including AI, to
create a realistic depiction, such as a deepfake is in scope.
Example 1--Entirely created using digital technology
Jade is a candidate in the upcoming federal election. She authorises the
communication of a paid social media post that depicts her running on the
beach, dressed as a lifeguard, with text reading 'Only I can save you from
drowning in debt'.
Jade used AI to generate the entire image and the text. As such, her
authorisation particulars would be required to include the statement specified
in new table item 9 of subsection 321D(5).
Example 2--Substantially modified using digital technology
Citizens for Tech Safety, a lobby group, authorises a flyer that encourages
voters to support candidates who want to limit the use of facial recognition
technology in policing. The flyers contain a CCTV image of a local person
being wrongly arrested, alongside text reading 'She was innocent. This is what
facial recognition does to innocent people'.
The image has been modified using digital technology to change a real CCTV
photo of the person walking peacefully to an image where she is being
apprehended. As such, the content of the matter was substantially modified
using technology and would be required to include the statement specified in
new table item 10 of subsection 321D(5).
Example 3--Not substantially modified using digital technology
Kyrie is a candidate in the upcoming federal election. She authorises a poster
showing her smiling in front of a purple background with text underneath
reading 'Vote [1] for Kyrie'.
When producing the content of the matter, Kyrie was photographed in front of
a greenscreen. Using digital technology, the greenscreen was replaced with the
purple background and the text 'Vote [1] for Kyrie' was added. These
modifications would not amount to substantial modifications such that the
matter would be required to include the statement specified in new table item
10 of subsection 321D(5).
330. Item 36 makes an amendment to renumber existing Note 3 consequential to the
inclusion of a new Note 3 in Item 35.
331. Item 37 inserts new subsections 321D(5C) which requires the particulars set out
in items 9 and 10 of the table to be notified on each individual advertisement or
electoral matter to which the matter relates. This is in addition to the any
requirements determined in the legislative instrument under subsection 321D(7).
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332. Item 37 also inserts new subsection 321D(5D) to specify new table items 9 and
10 in existing subsection 321D(5) will not apply to electoral matter where the
notifying entity was not involved in determining the content of the electoral
matter and could not reasonably have been expected to have known that the
matter was substantially or entirely created or modified using technology.
333. Item 37 also inserts new subsection 321D(5E) to clarify that new table items 9
and 10 in existing subsection 321D(5) do not limit any other item of that table.
This reflects the intention that the notifying particulars required by new table
items 9 and 10 are to be included alongside other notifying particulars that may
apply to electoral matter.
Schedule 2--Amendment of the Referendum Act
334. Schedule 2 replicates the above amendments made to the Electoral Act
(Schedule 1 to the Bill) to also apply to referendums. The Panel will be
operational for referendums where the writ is issued after 1 January 2026.
335. The civil penalty provisions for authorisable electoral matter that contains a
visual or audio depiction of a candidate are not replicated for the Referendum
Act, as there are no candidates in a referendum. Appropriate provisions in
relation to referendums will be considered during the next review of the
Referendum Act.
Schedule 3--Other Amendments
336. Schedule 3 repeals the media blackout period rule which prohibits certain types
of broadcasters from broadcasting electoral or referendum advertisements in the
final three days before a federal election polling day or referendum voting day.
The blackout period rule applies as a special condition on the licences of:
commercial television broadcasting licensees; commercial radio broadcasting
licensees; community broadcasting licensees; subscription television
broadcasting licensees and persons providing broadcasting services under class
licences ('the licenced broadcasters').
337. The removal of these requirements implements Recommendation 15 of the
JSCEM's Final Report into the Conduct of the 2022 federal election and other
matters and reflects the JSCEM's findings that introducing a framework to
regulate inaccurate and misleading electoral matter will reduce the need for the
blackout period. This removal also resolves the JSCEM's concern regarding the
inconsistent application of blackout periods across all media services, including
broadcasters and online services.
338. Consistent with the JSCEM's recommendation, the amendments in Schedule 3
which repeal the media blackout would commence on 1 January 2026, following
commencement of new electoral communications laws proposed to be inserted
by Schedules 1 and 2 to this Bill.
Broadcasting Services Act 1992
339. Item 1 repeals clauses 3A and 3B of Schedule 2 to the BSA to remove the
requirement for the licensed broadcasters to not broadcast election and
referendum advertising during the period commencing at the end of the
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Wednesday before the polling or voting day and ending at the close of the poll or
voting on that polling or voting day.
340. Items 2-6 makes amendments to clauses 7-11 of Schedule 2 to the BSA to
remove all references to clauses 3A and 3B, consequential to the repeal of those
clauses in Item 1.
Special Broadcasting Services Act 1991
341. Item 7 makes an amendment to existing subsection 45(1) of the SBS Act to
remove references to existing sections 70C and 71 consequential to the repeal of
those sections in Item 8.
342. Item 8 repeals existing sections 70C and 71 to remove the requirement that the
SBS not broadcast an election or referendum advertising during the period
commencing at the end of the Wednesday before the polling or voting day and
ending at the close of the poll or voting on that polling or voting day.
Schedule 4--Transitional rules
343. Item 1 provides that the Minister may make rules prescribing matters of
transitional nature relating to the amendments or repeals made by this act. The
Minister must make these rules by legislative instrument. The rules made by the
Minister are not limited by any application or transitional items in this Schedule.
344. For the avoidance of doubt this item makes clear that the rules the Minister may
make by legislative instrument do not do any of the following things:
• create an offence or civil penalty;
• impose a tax;
• set an amount to be appropriated from the Consolidated Revenue Fund;
• provide powers of arrest, detention, entry, search, and seizure; or
• directly amend the text of this Act.
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