Authorisation

Anything that might effect a readers voting intention must be ‘authorised’.  

Here are notes from the AEC relating to Electoral Advertising that anyone who is likely to be putting out material for the HEMP Party must read and understand.

 

Extracts from the AEC publication:

Electoral Backgrounder – Electoral Advertising, of April 2010.

ISSN 1440 – 8007 | Authorised by Kathy Mitchell, West Block Offices, Queen Victoria Terrace, Parkes ACT 2600

 

an ‘electoral advertisement’ is defined in s 328(5) as follows:

[10] Electoral advertisement, handbill, pamphlet, poster or notice means an advertisement, handbill, pamphlet, poster or notice that contains electoral matter, but does not include an advertisement in a newspaper announcing the holding of a meeting.

[11]. ‘Electoral matter’ is defined in s 4(1) and s 4(9). in s 4(1) ‘electoral matter’ is defined as matter ‘intended or likely to affect voting in an election’. section 4(9) further provides that matter shall be taken to be intended or likely to affect voting in an election if it contains an express or implicit reference to, or comment on:

(a) the election

(b) the government, the opposition, a previous government or a previous opposition

(c) the government or opposition, or a previous government or opposition, of a state or territory

(d) a member or former member of the Parliament of the commonwealth or a state, or of the legislature of a territory

(e) a political party, a branch or division of a political party or a candidate or group of candidates in the election

(f) any issue submitted to, or otherwise before, the electors in connection with the election.

 [12] It should be noted; however, that despite the words ‘shall be taken to be’, s 4(9) must be read in light of the limits on the commonwealth’s constitutional power to regulate electoral matters. that is, the commonwealth may not regulate electoral advertising that contains no connection to the commonwealth.

……

[17] Accordingly, in determining whether material which makes reference to paragraphs 4(9)(b), (c) and (d) and therefore whether the material falls within s 328, the aEc applies the following:

During a federal election period

Where an advertisement falls within a federal election period, s 4(9) will deem an advertisement making an express or implicit reference to one of the people or bodies politic in paragraphs (b), (c) and (d) to contain electoral matter. accordingly, the advertisement requires authorisation for the purposes of s 328.

Outside a federal election period

Where the advertisement falls outside a federal election period, the issue is whether there is some connection between the reference to a person or institution prescribed in paragraphs 4(9)(b), (c) or (d) and a federal election. if the answer is ‘yes’, for example, if the reference is intended or likely to affect voting in a federal election, the advertisement requires authorisation for the purposes of s 328. importantly, this requires an assessment of the intention or effect of the advertisement.  

[18] Of course, where material falls outside of the deeming provision in s 4(9), it will only require authorisation if it otherwise contains ‘electoral matter’ in s 4(1) – i.e. if it is intended or likely to affect voting in an election. This will require an assessment of the intention or effect of the advertisement.

Details of the person who authorised the advertisement

[19] Section 328 requires electoral advertisements to include the name and full street address of the person who authorised the advertisement as well as the name and place of business of the printer of the advertisement at the end of the advertisement. this ensures that anonymity does not become a protective shield for irresponsible or defamatory statements.

Address of the authoriser

[20] The address requirements prohibit the use of a post office box and require a full street address and suburb or locality at which the person can usually be contacted during the day. the address does not have to be a residential address.

Advertisements published in newspapers

[21] With respect to newspaper advertising, although s 328(1)(a) requires electoral advertisements in newspapers to contain the name and address of the person who authorised the electoral advertisement, s 328(1)(b) makes it clear that the name and place of business of the printer is not required at the end of an advertisement in a newspaper.

Sections 328(1aB) and (1ac) make it an offence to print, publish or distribute, or cause, permit or authorise the printing, publication and distribution, of electoral advertisements that take up the whole or part of each of two opposing pages of a newspaper, without including the name and address (not being a post office box number) of the person who authorised the electoral advertisement at the end of both pages, except in specific circumstances relating to the layout of the advertisement.

[22] Section 328(2) provides that the maximum penalty for a contravention of s 328(1), (1a) or (1aB) is a fine not exceeding $1 000 for a person, or a fine not exceeding $5 000 for a body corporate.

What does not require authorisation?

[23] Sections 328(3) and (5) provide certain exceptions to the usual authorisation requirements. the following electoral advertisements do not require an authorisation and printer details: electoral advertisements in newspapers announcing the holding of a meeting; electoral advertisements on t-shirts, lapel buttons and badges, pens, pencils, and balloons; and business cards that promote a candidate, or letters and cards that already bear the name and address of the sender (and do not contain a representation of a ballot paper).

This means that, for example, letters to constituents from Members of Parliament or business cards from candidates do not require the person who authorised them and printer details if they already contain the name and address of the person responsible. on the other hand, other publications such as stickers, fridge magnets, wine bottle labels, and cinema slides, for example, that contain electoral advertisements, do require the name and address of the person who authorised them and the name and place of business of the printer to be included.

What do you do if the material has already been produced and you have omitted to authorise it?

[24] In those circumstances where material has already been produced without the appropriate authorising information, and it would be expensive to discard the production run, theAECrecommends that additional material, containing the authorising information, be printed and attached to render the advertisement legal (e.g. stickers containing the authorisation).

Headings to electoral advertisements

[25] Electoral advertisements in a journal (e.g. newspapers, magazines and other periodicals), whether published for sale or for distribution without charge, must contain an identifying heading. section 331 requires the proprietor of a journal to cause the word ‘advertisement’ to be printed as a headline to the advertisement, in letters not smaller than 10 point. other special requirements apply to large advertisements spread across two opposing pages of a journal (see paragraph 21 above).

[26] There is no requirement for the identification of the authors of ‘letters to the editor’ in newspapers and journals. similarly, there is no law requiring the identification of talkback radio callers during an election period.

[27] The maximum penalty for a contravention is five penalty units. (a single penalty unit is currently equivalent to $110 under s 4aa of the Crimes Act 1914.)

[28] It is important to note that s 331 applies at all times, not just during an election period.

Electoral advertising – Internet

[29] Section 328a applies to electoral advertisements intended to affect voting in a federal election where a person has paid for the advertisement to appear on the internet.

[30] It is important to distinguish the reference to ‘electoral advertisement’ as it applies to advertising on the internet (s 328a) from the reference to electoral advertisement that applies to printed matter (s 328). section 328a does not define electoral advertisements by reference to the term electoral matter. the aEc is of the view that the ordinary natural meaning of advertisement applies. the Macquarie Dictionary defines ‘advertisement’ as ‘any device or public announcement, as a printed notice in a newspaper, a commercial film on television, a neon sign, etc., designed to attract public attention, bring in custom, etc’.

[31] Accordingly, any announcement designed to attract public attention, which was intended to affect voting in a federal election, would appear, on its face, to attract the operation of s 328a(1).

[32] It is important to note that s 328a(2) provides a defence to a contravention of s 328a(1) if the matter published forms part of a general commentary on a website.

[33] The maximum penalty for a contravention is five penalty units. (a single penalty unit is currently equivalent to $110 under s 4aa of the Crimes Act 1914).

[34] It is important to note that s 328a applies at all times, not just during an election period.

 

 


 

COMMONWEALTH ELECTORAL ACT 1918 – SS 328 & 328A

328 Printing and publication of electoral advertisements, notices etc.

(1)  A person shall not print, publish or distribute or cause, permit or authorize to be printed, published or distributed, an electoral advertisement, handbill, pamphlet, poster or notice unless:

(a)  the name and address of the person who authorized the advertisement, handbill, pamphlet, poster or notice appears at the end thereof; and

 (b)  in the case of an electoral advertisement, handbill, pamphlet, poster or notice that is printed otherwise than in a newspaper–the name and place of business of the printer appears at the end thereof.

 (1A)  A person must not produce, publish or distribute or cause, permit or authorise to be produced, published or distributed an electoral video recording unless the name and address of the person who authorised the video recording appears at the end of it.

(1AB)  Subject to subsection (1AC), a person must not print, publish or distribute or cause, permit or authorise to be printed, published or distributed an electoral advertisement that takes up the whole or part of each of 2 opposing pages of a newspaper unless, in addition to fulfilling the requirement under paragraph (1)(a) that the name and address of the person who authorised the electoral advertisement appear at the end of it, such name and address also appears on the other page, or the part of the other page, taken up by the electoral advertisement.

(1AC)  Subsection (1AB) does not apply to an advertisement of the kind referred to in that subsection:

(a)  that is contained within:

(i)  a broken or unbroken border; or

(ii)  broken or unbroken lines extending across, or partly across, the top and bottom of the advertisement; or

(iii)  a broken or unbroken line extending along, or partly along, each side of the advertisement; or

(b)  that is printed so that to read one or more lines of the text of the advertisement it is necessary to read across both pages.

(2)  A person who contravenes subsection (1), (1A) or (1AB) is guilty of an offence punishable on conviction:

(a)  if the offender is a natural person–by a fine not exceeding $1,000; or

(b)  if the offender is a body corporate–by a fine not exceeding $5,000.

(3)  Subsection (1) does not apply in relation to:

(aa)  a how-to-vote card; or

(a)  T-shirt, lapel button, lapel badge, pen, pencil or balloon; or

(b)  business or visiting cards that promote the candidacy of any person in an election for the Parliament; or

(c)  letters and cards:

(i)  that bear the name and address of the sender; and

(ii)  that do not contain a representation or purported representation of a ballot paper for use in an election for the Parliament; or

(d)  an article included in a prescribed class of articles.

(4)  Nothing in paragraph (3)(aa), (a), (b) or (c) is taken, by implication, to limit the generality of regulations that may be made by virtue of paragraph (3)(d).

(5)  In this section:

“address” of a person means an address, including a full street address and suburb or locality, at which the person can usually be contacted during the day. It does not include a post office box.

“electoral advertisement, handbill, pamphlet, poster or notice” means an advertisement, handbill, pamphlet, poster or notice that contains electoral matter, but does not include an advertisement in a newspaper announcing the holding of a meeting.

“electoral video recording” means a video recording that contains electoral matter.

328A Publication of electoral advertisements on the internet

(1)  A person commits an offence if:

(a)  either:

(i)  the person publishes an electoral advertisement on the internet; or

(ii)  the person causes, permits or authorises an electoral advertisement to be published on the internet; and

(b)  the electoral advertisement is intended to affect voting in an election; and

(c)  the electoral advertisement is paid for by the person or another person; and

(d)  the name and address of the person who authorised the advertisement do not appear at the end of the advertisement.

Penalty:  10 penalty units.

(2)  Subsection (1) does not apply if the matter published on the internet forms part of a general commentary on a website.

Note:       A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

(3)  Section 15.2 of the Criminal Code (extended geographical jurisdiction–category B) applies to an offence against subsection (1) .

(4)  In this section:

“address” of a person means an address, including a full street address and suburb or locality, that is located in Australia at which the person can usually be contacted during the day. It does not include a post office box. 

 

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