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Electoral and Other Legislation Amendment Bill 2017

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2016-2017

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

ELECTORAL AND OTHER LEGISLATION AMENDMENT BILL 2017

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Special Minister of State, Senator the Hon Scott Ryan)

 

 



ELECTORAL AND OTHER LEGISLATION AMENDMENT BILL 2017

 

GENERAL OUTLINE

1.                    Schedule 1 of the Electoral and Other Legislation Amendment Bill 2017 (the Bill) strengthens Australian democracy by requiring those responsible for political, electoral and referendum communication to identify themselves, irrespective of the communication channel. It streamlines the old authorisation requirements to make them clearer, more consistent and easier to navigate without unnecessarily detracting from communication with voters.

2.                    Schedule 2 of the Bill complements the transparency and accountability measures in the Bill by ensuring that making false representations in relation to a Commonwealth entity or service is appropriately criminalised.

3.                    On 9 December 2016, the Joint Standing Committee on Electoral Matters (JSCEM) tabled a report entitled The 2016 Federal Election: Interim Report on the authorisation of voter communication .  The Bill implements the Government response to the recommendations of the JSCEM Report. 

4.                    The Bill amends:

·          the Commonwealth Electoral Act 1918

·          the Referendum (Machinery Provisions) Act 1984

·          the Australian Broadcasting Corporation Act 1983

·          the Broadcasting Services Act 1992

·          the Parliamentary Proceedings Broadcasting Act 1946

·          the Special Broadcasting Service Act 1991

·          the Criminal Code Act 1995 (the Criminal Code) .

5.                    In summary, the Bill:

·          applies the electoral authorisation requirements to modern communication channels

·          requires all paid electoral advertising (which includes distribution or production) to be authorised, no matter the source

·          makes the information provided in authorisations more useful to voters by requiring those subject to the Commonwealth electoral funding and finance disclosure regime (disclosure entities) to include this information in their political communications

·          ensures the obligation to authorise electoral and referendum matter primarily rests with those responsible for the decision to communicate it

·          replaces the current criminal non-compliance regime with a civil penalty regime to be administered by the Australian Electoral Commission

·          harmonises authorisation requirements across broadcasting, electoral, and referendum legislation, while retaining current requirements in relation to specified printed materials

·          criminalises conduct amounting to a person falsely representing themselves to be, or to be acting on behalf of, or with the authority of, a Commonwealth entity or service.

6.                    The Bill’s authorisation regime exempts the need to authorise:

·          clothing or any other item intended to be worn by a person

·          the reporting of news, presentation of current affairs or editorial content in news media

·          communication solely for genuine satirical, academic or artistic purposes, or solely for the purpose of announcing a meeting

·          opinion polling and research relating to voting intentions

·          communication for personal purposes

·          communication intended to remain within a disclosure entity

·          real-time communications, where the speaker and any disclosure entity on whose behalf the speaker is communicating, are, or could, reasonably be identified.

7.                    A similar authorisation regime is introduced for referendums, with some modifications to reflect the different nature of such issue-based electoral events, based on the entities involved and the types of financial disclosure for referendums. Like with elections, all paid advertising in referendums is covered by the Bill’s authorisation regime, as are registered political parties and their associated entities. Unlike elections, recent candidates, Senate groups and donors are not specifically covered.  However, persons and entities spending money on campaigning or communicating relating to the respective referendum matter in excess of the indexed financial disclosure threshold will be covered by the authorisation requirements. The relevant period for expenditure will be the twelve months prior to the issue of the writ for a referendum, rather than a financial year.

8.                    Schedule 2 amends the Criminal Code to criminalise conduct amounting to a person falsely representing themselves to be, or to be acting on behalf of, or with the authority of, a Commonwealth body.

9.                    Schedule 2 introduces a primary offence where the person is reckless as to whether their conduct will result in, or is reasonably capable of resulting in, a false representation. These amendments also create a new aggravated offence where a person engages in such conduct with the intent to obtain a gain, cause a loss, or influence the exercise of a public duty. Schedule 2 seeks to ensure that making false representations in relation to a Commonwealth body is appropriately criminalised.



Financial impact statement 

10.                Schedule 1 of the Bill would have the following financial impact:

 

2016-17

2017-18

2018-19

2019-20

2020-21

0.0

5.8

0.9

0.9

0.9

11.                Any impact the Bill may have on Government revenue, such as through recovery of civil penalties, is not able to be quantified at this time.

 

Statement of compatibility with human rights

12.                A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill and assesses that the amendments are compatible with Australia’s human rights obligations.



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Electoral and Other Legislation Amendment Bill 2017

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .



Overview of the Bill

1.                 The Bill promotes free and informed voting at elections and referendums by allowing electors to know who is communicating to them. The Bill strengthens Australian democracy by extending current authorisation requirements and harmonising existing requirements across communication mediums. It also protects Australian Government entities and services from certain types of misrepresentations and false statements, safeguarding the proper functioning of Government.

2.                 Amendments to the Commonwealth Electoral Act 1918 (the Electoral Act) provided for in Schedule 1 of the Bill require all paid advertising and some types of printed communication containing electoral matter to contain particulars identifying the authoriser. Additionally, entities with financial disclosure obligations under Part XX of the Electoral Act will be required to:

·          identify themselves in the required particulars (currently, only political parties in broadcast media are required to do so)

·          include required particulars in their electoral communications, with certain exceptions.

3.                 Political parties and their associated entities, candidates in elections, and Senate groups will be required to identify themselves in all electoral communications. Other entities with annual political expenditure over the indexed disclosure threshold (currently, $13,200) and donors over the disclosure threshold will also be required to include required particulars identifying themselves.

4.                 Schedule 1 of the Bill introduces a civil penalty regime to replace the existing criminal penalty that has operated under the Electoral Act. The Australian Electoral Commission will enforce the requirements using additional information-gathering and broader injunction powers.  The civil penalties are commensurate with penalties payable under similar regulatory regimes.

5.                 Schedule 1 of the Bill preserves the ability to communicate anonymously for satirical, academic or artistic purposes. The news media will continue to be able to protect the identity of their sources, staff and collaborators, and opinion polling will be unaffected. With respect to disclosure entities, which could be individuals or organisations, the Bill explicitly exempts personal and internal communications.

6.                 Corresponding amendments are provided for in the Broadcasting Services Act 1992 , the Australian Broadcasting Corporation Act 1983 and the Special Broadcasting Service Act 1991 to provide consistency between broadcast and non-broadcast communications. Consequential amendments are provided for in the Parliamentary Proceedings Broadcasting Act 1946 to extend the existing exemption from the authorisation requirements to cover the amendments provided for in tis Bill.

7.                 A similar authorisation regime is introduced for referendums, through amendments to the Referendum (Machinery Provisions) Act 1984 with some modifications to reflect the different nature of such issue-based electoral events and the lack of a financial disclosure regime for referendums. Like with elections, all paid advertising in referendums is covered by the Bill’s authorisation regime, as are registered political parties and their associated entities. Unlike with elections, recent candidates, Senate Groups and donors will not be subject to authorisation requirements. However, entities spending money in excess of the indexed financial disclosure threshold on campaigning or communicating relating to the respective referendum matter will, like in elections, be covered by authorisation requirements. However, the relevant period will be the twelve months prior to the issue of the writ for a referendum, rather than a financial year.

8.                 Schedule 2 of the Bill amends the Criminal Code Act 1995 (the Criminal Code) to introduce an offence which criminalises conduct amounting to a person falsely representing themselves to be, or to be acting on behalf of, or with the authority of, a Commonwealth body. It also introduces an aggravated offence, where a person makes such a false representation with the intention of obtaining a gain, causing a loss, or influencing the exercise of a public duty or function.

9.                 The purpose of Schedule 2 of the Bill is to clarify the position under the Criminal Code to protect the public from misrepresentation and false statements, thereby ensuring the public has confidence in the legitimacy of communications emanating from Commonwealth bodies and safeguarding the proper functioning of Government.

 

Human rights implications

10.             This Bill engages the following rights as provided for in the International Covenant on Civil and Political Rights (ICCPR):

·          the right to take part in public affairs and elections, as contained in article 25

·          the right to freedom of opinion and expression, as contained in article 19

·          the prohibition on interference with privacy and attacks on reputation, as contained in article 17.

11.             The right to freedom of expression includes the right to receive and impart information and ideas of all kinds using any media. Article 19(3) explicitly states that the exercise of this right carries with it special duties and responsibilities. Accordingly, it may be subject to certain restrictions provided that the restrictions are provided by law and are for respect of the rights and reputation of others.

12.             The authorising requirements amount to restrictions on anonymous political speech in limited circumstances, and, in doing so, engage the rights specified above. The restrictions are objective, legitimate and proportional because they:

·          are provided for by law

·          serve a genuine public interest by protecting the free, fair and informed voting, which is essential to Australia’s system of representative government

·          support the right to protection against unlawful attacks on reputation

·          apply to an objectively defined group of entities who freely choose to play a prominent role in political debate.

13.             There is a strong public interest in ensuring that voters are aware of who is communicating to them without adversely impacting public debate. These authorisation requirements facilitate transparency and public confidence in Australia’s electoral processes. They allow voters to assess the credibility of the information they rely on when forming their political judgment and selecting their representatives in the Parliament.

14.             Ultimately, this Bill facilitates free and informed voting at elections, an object which is essential to Australia’s system of representative democracy. The strong public interest in achieving these objectives outweighs the rights to privacy of those covered by the authorisation regime who might wish to communicate anonymously.

15.             Furthermore, the Bill’s restrictions on anonymous electoral communications supports the right of participants in public debate to protection against unlawful attacks on reputation by providing key information necessary to commence appropriate civil action under Australia’s defamation laws.

16.             The Bill limits the restriction on anonymous speech to circumstances strictly necessary to protect the public interest by providing explicit exemptions for:

·          the reporting of news, current affairs and editorial content in news media

·          communication solely for genuine satirical, academic or artistic purposes

·          personal or internal communications of disclosure entities

·          opinion polls and research relating to voting intentions.

17.             The Bill’s civil penalty provisions do not constitute a criminal penalty for the purposes of human rights law as they are not classified as criminal under Australian law and are restricted to people in a specific regulatory context.

18.             The new offences in section 150.1 of the Criminal Code, as proposed in Schedule 2 of the Bill, engage the right to freedom of expression under article 19(2) of the ICCPR.

19.             The right to freedom of expression includes the right to receive and impart information and ideas of all kinds in writing or in print and using any media. Article 19(3) explicitly states that this right may be subject to certain restrictions provided that the restrictions are provided by law and are for the protection of (among other things) public order or national security.



20.             The new offences engage the right to freedom of expression as they prohibit false representations that a person is a Commonwealth body, or acts on behalf of, or with the authority of, a Commonwealth body. This will prevent an individual from imparting information and ideas that amount to such a false representation. 

21.             These restrictions on a person’s freedom of expression are justified. The offences are provided for by law in new section 150.1 of the Criminal Code, and impose penalties which mirror offences that criminalise the impersonation of Commonwealth public officials.

22.             The offences are necessary for protecting public order. Public order encompasses the rules which ensure the peaceful and effective functioning of society, or the set of fundamental principles on which society is founded. Representations falsely purported to be from, or on behalf of, a Commonwealth body could undermine public confidence in the integrity and authority of the Australian Government. Commonwealth departments, companies, services and programmes cannot function effectively unless recipients trust the legitimacy and lawfulness of representations emanating from them.

23.             The offences are a reasonable and proportionate way of achieving the aim of protecting public order. In order to commit an offence under section 150.1, a person must be reckless as to whether their conduct will result in, or is reasonably capable of resulting in, the relevant representation, and whether they, in fact, are a Commonwealth body, or act on behalf of, or with the authority of, a Commonwealth body. Negligent or accidental creation of a false representation will not be sufficient to establish the fault elements of these offences. 

24.             Further, the offences limit only a person’s ability to make representations that falsely represent that person to be, or be acting on behalf of, or with the authority of, a Commonwealth body. They do not affect genuine representations made on behalf of a Commonwealth body, or that are made with the authority of the body. They also do not affect comment or criticism about a Commonwealth body, provided this is done without falsely representing that the comment or criticism is made by or on behalf of a Commonwealth body. Further, the offences will not affect representations made solely for genuine satirical, academic or artistic purposes. 

 

Conclusion

25.             The Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.  



ELECTORAL AND OTHER LEGISLATION AMENDMENT BILL 2017

 

NOTES ON CLAUSES

Glossary

1.                   The following abbreviations and acronyms are used throughout this explanatory memorandum:

Abbreviation

Definition

the ABC Act

Australian Broadcasting Corporation Act 1983

the ACMA

the Australian Communications and Media Authority

the Act

Electoral and Other Legislation Amendment Act 2017

the Criminal Code

Criminal Code Act 1995

the ABC

the Australian Broadcasting Corporation

the Broadcasting Services Act

Broadcasting Services Act 1992

the Electoral Act

Commonwealth Electoral Act 1918

the Legislation Act

Legislation Act 2003

the Referendum Act

Referendum (Machinery Provisions) Act 1984

the Regulatory Powers Act

Regulatory Powers (Standard Provisions) Act 2014

the SBS Act

Special Broadcasting Service Act 1991

the SBS

the Special Broadcasting Service Corporation

 

Clause 1 - Short title

2.                   This clause specifies the short title of the Bill, when enacted, as the Electoral and Other Legislation Amendment Act 2017 (the Act).

Clause 2 - Commencement

3.                    This clause sets out the commencement provisions for the Act, in accordance with the table in subclause 2(1) (the commencement table). 

4.                    Item 1 of the commencement table provides that sections 1 to 3 of the Act and anything in the Act not elsewhere covered commence the day after the Act receives the Royal Assent.

5.                    Item 2 of the commencement table provides that Schedule 1 (Authorising electoral, referendum and political matter) commences the day after the end of the period of 6 months beginning on the day the Act receives the Royal Assent.

6.                    Item 3 of the commencement table provides that Schedule 2 (Impersonating a Commonwealth body) commence the day after the Act receives the Royal Assent.

7.                    A note is included under the commencement table to clarify that it relates only to the provisions of the Act as originally enacted, and will not be amended to deal with later amendments of the Act.

8.                    Subclause 2(1) provides that any information in column 3 of the commencement table is not part of the Act.  Information may be inserted in column 3, or information in it may be edited, in any published version of the Act.

Clause 3 - Schedules

9.                    This clause is an enabling provision for the Schedules.  It provides that legislation that is specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, any other item in a Schedule to the Act has effect according to its terms.

Schedule 1 - Authorising electoral, referendum and political matter

 

Part 1 - Amendments of electoral legislation

 

Commonwealth Electoral Act 1918

 

Item 1 - Subsection 4(1)

10.               This item inserts definitions of “carriage service provider” and “civil penalty provision” into subsection 4(1) of the Commonwealth Electoral Act 1918 (the Electoral Act).

11.                “Carriage service provider” has the meaning given by section 87 of the Telecommunications Act 1997.   This definition will capture telecommunication and internet service providers who provide listed carriage services (see item 3).

12.                “Civil penalty provision” has the meaning given by the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act).

 

Item 2 - Subsection 4(1) (at the end of the definition of electoral matter )

13.                This item inserts a note at the end of the definition of “electoral matter” in subsection 4(1) to refer readers to subsection 4(9).  “Electoral matter” is defined as matter which is intended or likely to affect voting in an election.  Subsection 4(9) specifies particular matters that are taken to be intended or likely to affect voting in an election (see item 4).

 

Item 3 - Subsection 4(1)

14.                This item inserts definitions of “listed carriage service” and “Regulatory Powers Act” into subsection 4(1).

15.                “Listed carriage service” has the meaning given by section 16 of the Telecommunications Act 1997 .  This will capture communications between points (where one of those points is in Australia) by means of guided and/or unguided electromagnetic energy.  This includes communications transmitted by physical mediums (such as wires and cables), and by radiocommunication.

16.                “Regulatory Powers Act” means the Regulatory Powers (Standard Provisions) Act 2014.

 

Item 4 - Subsection 4(9)

17.                This item repeals and substitutes subsection 4(9).  Subsection 4(9) specifies types of matter that are taken to be intended or likely to affect voting in an election, without limiting the definition of “electoral matter” in subsection 4(1).

18.                New subsection 4(9) provides a list of specific matter that is taken to be matter intended or likely to affect voting in an election, referred to as “electoral matter”, without limiting the generality of that definition.  This deeming provision has been narrowed in scope given the significant expansion of the types of entities and situations in which authorisation requirements apply. For example, references to matter containing ‘…express or implicit reference to, or comment on, any Commonwealth, state or territory Government, Opposition, previous Government, previous Opposition, member of the Parliament or legislature or former member of the Parliament or legislature…’ have been removed from this list. As indicated in the note, this does not mean that these types of matter are not electoral matter. Rather, their removal from this list means that each communication containing such comments or references needs to assessed, on a case-by-case basis, as to whether it is intended or likely to affect voting in an election rather than automatically deemed to be.

19.                The operation of the remaining paragraphs in new subsection 4(9), which include matter referring or commenting on the election, political parties, branches of political parties, candidates, groups of candidates and issues submitted to or before the electors in connection with the election, will continue, although with a slightly narrower scope in relation to new Part XXA.  Only comments on the election, political parties, branches of political parties, candidates, groups of candidates and issues submitted to or before the electors in connection with the election will be within scope of new Part XXA.  These remaining paragraphs are considered broad enough to adequately capture content of communication, which can reasonably be taken to be electoral matter, while ensuring sufficient nexus or connection to a federal election.

Item 5 - Paragraph 308(1)(e)

20.                This item repeals and substitutes paragraph 308(1)(e).  Section 308 specifies those types of electoral expenditure which need to be included in returns of electoral expenditure in accordance with the requirements of Division 5 of Part XX of the Electoral Act.  The paragraph is updated to provide that expenditure incurred on the communicating of any electoral matter, which is communicated during the election period and for which particulars are required to be notified under new section 321D, is electoral expenditure for the purposes of Division 5 of Part XX of the Electoral Act.  However, this will not be the case if the expenditure is already covered by specific inclusions in paragraphs 308(1)(a), (b) and (c) dealing with broadcasting of advertisements, publishing of advertisements in journals and the display of advertisements at a theatre or other place of entertainment relating to the election during the election period.

 



Item 6 - Subparagraph 314AEB(1)(a)(ii)

Item 7 - Subparagraph 314AEB(1)(a)(iii)

Item 8 - Subparagraph 314AEB(1)(a)(iv)

Item 9 - Subparagraph 314AEB(1)(a)(v)

21.                These items amend subparagraph 314AEB(1)(a)(ii), repeal and substitute subparagraph 314AEB(1)(a)(iii) and amend subparagraphs 314AEB(1)(a)(iv) and 314AEB(1)(a)(v).

22.                Subsection 314AEB(1) specifies those types of political expenditure which require a person to provide a return for a financial year.  There are further conditions that give rise to the need for a return, namely the amount of the expenditure and the characteristics of the person giving authority to incur the expenditure. 

23.                Subparagraph 314AEB(1)(a)(ii) provided that a person who incurred expenditure, by or with his or her own authority, for the public expression of views on an issue in an election by any means, must provide a return for a financial year where further conditions are met.  This subparagraph is updated to refer to the public expression of views on an issue that is, or likely to be, before electors in an election by any means, whether or not a writ has been issued for the election.  This clarifies that to give rise to a need for a return, the public expression of views must relate to an upcoming election rather than a past election. 

24.                Subparagraph 314AEB(1)(a)(iii) is updated to provide that where a person incurred expenditure on the communicating of any electoral matter for which particulars are required to be notified under new section 321D, it is a type of expenditure that may give rise to the need for a return if further conditions are met.  However, this will not be the case if the expenditure is already covered by specific inclusions in subparagraphs 314AEB(1)(a)(i) and (ii), which deal with the public expression of views on a political party, candidate in an election, a member of the House of Representatives or the Senate or on an issue that is, or likely to be, before electors in an election.  This prevents the same expenditure from being included multiple times in an annual return.

25.                 Subparagraph 314AEB(1)(a)(iv) is updated to provide that where a person incurred expenditure on the broadcast of political matter, in relation to which particulars are required to be announced under subclause 4(2) of Schedule 2 to the Broadcasting Services Act 1992 (the Broadcasting Services Act), it is a type of expenditure that may give rise to the need for a return if further conditions are met.  However, this will not be the case if the expenditure of political matter is already covered by subparagraph 313AEB(1)(a)(iii).  This also prevents the same expenditure from being included multiple times in an annual return.

26.                Subparagraph 314AEB(1)(a)(v) is updated to provide that where a person incurred expenditure on the carrying out of an opinion poll, or other research, relating to an election, whether or not a writ has been issued for the election, or the voting intentions of electors, it is a type of expenditure which may give rise to the need for a return if further conditions are met.  This clarifies that such expenditure may relate to an upcoming election even if the writs have not yet been issued.

 



Item 10 - After Part XX

27.                This item inserts new Part XXA of the Electoral Act dealing with authorisation of electoral matter.

Division 1 - Preliminary

Section 321B

28.                Section 321B provides various definitions for the purposes of Part XXA, which are addressed below.

“Address”

29.                “Address” means different things depending on whether the person is a natural person or an entity. For a natural person, “address” means a full street address and suburb or locality at which the person can be contacted. For an entity with a principal office, “address” means a full street address and suburb or locality of the office. For an entity without a principal office, but with premises, “address” means a full street address and suburb or locality of the premises. For an entity with neither a principal office nor premises, “address” means a full street address and suburb or locality at which the natural person who was responsible for giving effect to the authorisation can be contacted.

30.                However an “address” for the purposes of Part XXA is not a post office box for either a natural person or an entity. The definition of “address” is relevant to the particulars required to be notified for certain types of printed matter in subsection 321D(5).

“Ancillary contravention”

31.                “Ancillary contravention” of section 321D means a contravention of that section as a result of section 92 of the Regulatory Powers Act.  Specific activities, referred to as ancillary contraventions, are taken to be contraventions under section 92 of the Regulatory Powers Act.  In particular, these activities are: attempting a contravention; aiding, abetting, counselling or procuring a contravention; inducing a contravention, being knowingly concerned in a contravention; or conspiring with others to affect a contravention.

“Authorises”

32.                A person “authorises” the communication of electoral matter only if the person approves the content of the matter before it is communicated or, if the content is not approved before the matter is communicated, the person communicates the matter. This provision is intended to ensure that the person who is considered to have authorised the communication of electoral matter is the person who is responsible for the communication rather than other persons involved in the communication who may not necessarily be responsible.  Responsibility is demonstrated by approving the content of matter before it is communicated, or having sufficient authority to communicate matter without content being approved by someone else. 

33.                The definition of “authorises” is relevant to the requirements to notify particulars under new subsection 321D(3).  There are also specific exclusions from the term “communicate” (see definition of “communicate”).

34.                Two specific examples are provided under the definition of “authorises”.  In the case of a call centre, the person who was originally responsible for approving the content of the phone calls from the call centre is the person who authorises the communication.  In the case of an email, whose content has not previously been approved, the person who sends the email authorises the communication.  The following additional examples illustrate other instances of a person who authorises electoral matter under the definition:

 

Example 1: “Authorises”

 

Raycelle Evans is the campaign manager for Tracey Arendt, a candidate in the upcoming federal election. Raycelle drafts a speech for Tracey to use at a campaign event.  Tracey reads over the speech, requesting some edits before she approves it.

 

In this example, Tracey has “authorised” the speech.  Even if she hadn’t read over the speech and approved it prior to delivering the speech, Tracey has ultimate control over what she says or will not say and by reading the speech, Tracey is approving it in the form she delivers.

 

Example 2: “Authorises”

 

Tracey sees an online post from the incumbent Member of Parliament, against whom she is running, promising to ban dogs from local parks if he is elected. Tracey reposts her opponent’s post, with the comment ‘shame!’

 

In this example, the incumbent member “authorises” the original post. Tracey “authorises” the reposted post. The communication Tracey is authorising includes the original post (which she reposts) and her comment on it. However, the provider of the service used to post the messages does not “authorise” either post as the service provider did not make the decision to communicate the content.

 

Example 3: “Authorises”

 

John feels passionately that Tracey Arendt is the best candidate running in his electorate/Division. He raises $40,000 and decides to use the money to hire a call centre to ring people in his electorate to convince them to vote for Tracey.  The call centre asks John to provide a script to cover many hypothetical scenarios.  John emails the script to the call centre and asks them to proceed with calling voters in his electorate/Division.

 

John has “authorised” the communication as he approved the content (the script) of electoral matter that was communicated.  The provider of the telephone service used by the call centre does not “authorise” the matter communicated as the telephone service provider did not make the decision to communicate the content.

 

Example 4: “Authorises”

 

A printer is contracted to print a document supplied by Raycelle Evans, the campaign manager for Tracey Arendt.  Raycelle developed the content and provided it to the printer without consulting Tracey.  The printer has not “authorised” the communication as the printer did not make the decision to communicate the content.  Raycelle has “authorised” the communication. 

“By-election”

35.                “By-election” means an election of a member of the House of Representatives that is not part of a general election.  Under section 4(1) of the Electoral Act, “general election” means a general election of the members of the House of Representatives.

“Communicate”

36.                A carriage service provider does not “communicate” electoral matter merely because the carriage service provider supplies the listed carriage service used to communicate the matter.  This definition makes it clear that telecommunications and internet service providers who merely provide a service, which is being used by an entity to communicate an electoral matter, is not communicating or authorising the communication of the matter. 

“Conduct”

37.                “Conduct” means an act or an omission to perform an act.

 “Disclosure entity”

38.                A person or entity is a “disclosure entity” at a particular time if the person or entity is any of the following at that time:

·          a registered political party (paragraph (a)).  Under subsection 4(1) of the Electoral Act, “registered political party” means a political party that is registered under Part XI.

·          an associated entity (within the meaning of Part XX of the Electoral Act) (paragraph (b)).  “Associated entity” is defined in subsection 287(1) of the Electoral Act.  Examples of associated entities include ‘500 clubs’, ‘think tanks’, registered clubs, service companies, trade unions and corporate party members, provided that they fall within the relevant definition in subsection 287(1).

·          a Senator or member of the House of Representatives (paragraph (c));

·          a candidate in an election or by-election (paragraph (d))

·          a person who was a candidate in an election or by-election of a member of the House of Representatives in the previous 4 years, or in an election of Senators for a State or Territory in the previous 7 years (paragraph (e)).  This period broadly aligns with that used in section 287 for the disclosure period relevant to candidates for the purposes of Part XX of the Electoral Act. 

·          a group of two or more candidates nominated for election to the Senate who have their names grouped in the ballot papers in accordance with section 168 (paragraph (f)), commonly referred to as a Senate group.

·          a person who is or will be required to provide a return under section 305A, 305B or 314AEB for the financial year in which the time occurs, except a return provided solely under subparagraph 314AEB(1)(a)(v) (paragraph (g)).  This provision includes those persons who are required to provide a return for the financial year in which the communication occurs, or who will be required to (despite the financial year not having concluded). 

-        In this context, section 305A covers persons who make gifts above a disclosure threshold to any candidate in the election, a member of a group or any other person specified by legislative instrument.  Section 305B covers persons who make gifts above a disclosure threshold to registered political parties and State branches of registered political parties.  Section 314AEB covers persons who have incurred specified political expenditure. 

-        Subparagraph 314AEB(1)(a)(v) refers to the carrying out of an opinion poll, or other research, relating to an election or the voting intentions of electors.  Excluding persons or entities that are or will be required to provide a return solely for incurring expenditure for opinion polling or research relating to voting intentions is consistent with the position that communication of this type is an exception to the authorisation requirements by virtue of paragraph 321D(4)(c).

·          a person who, based on conduct in previous financial years, may be required to provide a return under section 305A, 305B or 314AEB for the financial year in which the time occurs, except a return provided solely under subparagraph 314AEB(1)(a)(v) (paragraph (g)).  This is intended to cover the circumstance where persons have previously provided a return, and although they are not yet a person who is or will be required to provide a return for the financial year in which the communication occurs, their previous conduct indicates a likelihood that they will be required to provide a return for the financial year.

 

“Election”

39.                “Election” means a general election or election of Senators for a State or Territory.  Under section 4(1), “general election” means a general election of the members of the House of Representatives. 

“Primary contravention”

40.                “Primary contravention” of section 321D means a contravention of that section that is not an ancillary contravention (also defined in new section 321B) of that section.

“Relevant town or city”

41.                “Relevant town or city” in relation to an entity that authorised the communication of electoral matter means different things depending on the situation of the entity. For an entity with a principal office, “relevant town or city” means the town or city in which the office is located. For an entity without a principal office, but with premises, “relevant town or city” means the town or city in which the premises are located. For an entity with neither a principal office nor premises, “relevant town or city” means the town or city in which the natural person who was responsible for giving effect to the authorisation lives.

Section 321C

42.                Section 321C provides the objects of new Part XXA of the Electoral Act. Subsection 321C(1) provides that the object of Part XXA is to promote free and informed voting at elections by enhancing the transparency, accountability and traceability of communications with voters.  These objects reflect the recommendations of the Joint Standing Committee on Electoral Matters (JSCEM), in The 2016 Federal Election: Interim Report on the authorisation of voter communication .

43.                The JSCEM recommended that: the authorisation of electoral materials ensure that parties and other participants should be held to account and be responsible for their political statements; and those who authorise electoral materials should be identifiable and traceable for enforcement and other purposes (Recommendation 1). The JSCEM also recommended that an objects clause be included in the Electoral Act to complement and strengthen existing legislation (Recommendation 3). 

44.                Subsection 321C(2) specifies how the new Part XXA aims to achieve the objects in subsection 321C(1), reflecting the requirements contained in new section 321D.  This is by requiring identifying details (‘particulars’) of the person who authorised the communication of specified electoral matter to be notified.  Specified electoral matter is one of three types.  The first type of matter is an electoral advertisement where all or part of the distribution or production is paid for.  As reflected in a large proportion of the public submissions to the JSCEM inquiry and the financial disclosure regime in Part XX of the Electoral Act, Australians desire a heightened level of transparency when electoral communications have been paid for.

45.                The second type is matter which forms part of certain types of printed matter. These types of printed matter, specified in new paragraph 321D(1)(b), are currently specified in old section 328. No longer requiring them to be authorised may weaken current levels of transparency and accountability, which was not the intent of the JSCEM recommendations underpinning the Bill. Furthermore, as printed matter is more permanent that other forms of communication, it does not afford the same opportunities to voters to interact in order to identify the source of the communication as is typical in electronic or other communication mediums.

46.                The third type is matter communicated by, or on behalf of, a disclosure entity.  Subsection 321(C)(2)(b) provides that new Part XXA aims to achieve transparency by ensuring identifying details are clearly identifiable, irrespective of how the matter is communicated.

47.                Subsection 321C(3) notes that new Part XXA is not intended to detract from the ability of electoral matters to be communicated to voters, and voters’ ability to communicate with each other on electoral matters. This highlights that, when applying the requirements in new section 321D, public debate should be enhanced through increased transparency and accountability, and not stilted by red tape that does not contribute to the objects specified in new section 321C.

 

Division 2 - Authorisation of certain electoral matter

 

Section 321D

48.                Subsection 321D(1) specifies the requirements for electoral matter, as defined in subsection 4(1) of the Electoral Act (see item 2), to be authorised. 

49.                Under subsection 321D(1), electoral matter must be communicated to a person to fall within the scope of the requirement.  Any method of communication is covered, including all methods of displaying, publishing or distributing visual, audio or audio-visual material and face-to-face communication containing electoral matter.  However, in accordance with the definition of “communicate” in section 321B, communication does not include the supply of a listed carriage service by a carriage service provider.  Electoral matter is defined broadly and is not specific as to its form.

50.                Under paragraph 321D(1)(a), in addition to electoral matter being communicated to a person, all of the following must apply for electoral matter (in the form of an advertisement) to require an authorisation:

·          the matter is an electoral advertisement (subparagraph 321D(1)(a)(i)).  In this context, advertisement takes its ordinary meaning.  The Macquarie Dictionary defines “advertisement” as ‘any device or public announcement, as a printed notice in a newspaper, a commercial film on television, a neon sign, etc., designed to attract public attention, bring in custom’ etc.  Any advertisement containing electoral matter is intended to be covered.

·          all or part of the distribution or production of the advertisement, was paid for (subparagraph 321D(1)(a)(ii)).  In this context, ‘paid for’ is intended to include the incurring of any expense related to the production or distribution of the advertisement, in addition to any payments made.  Being ‘paid for’ is also intended to include in kind payments, where no money is involved, such as bartering or exchange arrangements. 

·          the content of the advertisement was approved by a person (the “notifying entity”), whether or not that person is the person who paid for the distribution or production of the advertisement (subparagraph 321D(1)(b)(iii)). 

Without limiting the types of advertisements requiring authorisation under paragraph 321D(1)(a), some examples of paid electoral advertisements include newspaper advertisements, internet-based advertising (such as website and ‘app’ banners, sidebars, tiles and pop-ups), and marketing techniques such as ‘advertorials’, ‘native advertising’ and push-polls. Push polling is a marketing technique in which an advertisement occurs under the guise of an opinion poll. Unlike opinion polls, push polls are an advertisement aiming to persuade their audience rather than collecting data for analytical purposes, and they do not adhere to statistically valid sampling procedures. Promotional items, such as toys, trinkets and plastic cards (including where such items imitate a real item in an issue to which they relate) are also likely to be paid advertising.

51.                Under paragraph 321D(1)(b), authorisation is required where electoral matter is communicated to a person via a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card.

52.                Under paragraph 321D(1)(c), where electoral matter is communicated to a person and is not covered by paragraphs 321D(1)(a) or (b), authorisation is required where the matter is communicated by, or on behalf of, a disclosure entity (the “notifying entity”). 

53.                “Disclosure entity” is defined in new section 321B.  The provision captures communication by, or on behalf of, those with a clear and obvious interest in the outcome of the election (political parties, associated entities, candidates and Senate groups).  It also captures communication by, or on behalf of, entities who are, will or may be required to provide a return related to political expenditure or gifts over the disclosure threshold, an amount of money which is published on the website of the Australian Electoral Commission and indexed annually in accordance with section 321 of the Electoral Act. The disclosure threshold in 2016-17 is $13,200.  The definition of “disclosure entity” ensures that those who demonstrate their interest in the outcome of the election, by virtue of their expenditure or gifts do not engage in anonymous communication intended or likely to affect voting in an election.  It also ensures that the coverage of the requirement is limited to an objectively defined class of persons.

54.                Note 1 under subsection 321D(1), explains that matter may be communicated on behalf of an entity whether or not the entity pays for the communication of the matter.  In this context, where matter is being communicated for the benefit of, and at the instruction or request of, the disclosure entity, it will be considered to be communicated ‘on behalf of’ the disclosure entity.  The following examples illustrate instances of communication on behalf of a disclosure entity:

 

Example 5: ‘On behalf of’

 

The Flora Party contracts a marketing firm to run their election campaign. The marketing firm refuses any payment for the campaign, whether in cash or in-kind. 

 

The marketing firm designs a communications strategy using a wide range of media including: highway billboards; boosting the search results of the Flora Party in commonly used search engines and social networking sites; a celebrity endorsement publicised through spots on breakfast television; and an app which simulates growing a flower garden. The Flora Party must ensure all communications that the marketing firm has produced and distributed for them meets the requirements of section 321D and that the particulars of the Flora Party are notified.  This is because the marketing firm is communicating on its behalf and, as a registered political party, the Flora Party is a disclosure entity. It is immaterial whether or not the marketing firm pays for the production or distribution of any given communication. For example, the celebrity endorsement must still include the Flora Party’s particulars irrespective of whether or not the celebrity is a volunteer or is paid.

 

Example 6: ‘On behalf of’

 

John, a retired carpenter, sees the Flora Party’s celebrity endorsement on television. He is convinced by the arguments put forward by the celebrity and decides to door-knock in his neighbourhood to try and convince his neighbours to vote for the Flora Party.

 

Neither the Flora Party nor John must ensure particulars are notified in John’s conversations with his neighbours, as the content of those conversations, while possibly for the benefit of the Flora Party, is not being communicated at the instruction or request of the Party.  The communication is therefore not occurring ‘on behalf of’ the Flora Party. 

 

Example 7: ‘On behalf of’

 

John joins the Flora Party’s mailing list. He receives an email containing the following text:

               

Dear Flora Party supporters

               

The election is just days away now! Make sure to organise a Flora Party phone tree! All you have to do is invite some friends over and call ten people you know, making sure to mention the following points:

 

·                                Joseph Banks is the candidate running for the Flora Party in our electorate

·                                Vote for the Flora Party in order to protect Australia’s native flowers

·        You are calling on behalf of the Flora Party, headquartered in Orange, and that Ben Fitz of the Flora Party authorised the communication this message. We find the easiest way to raise this last point is at the beginning of your call. You might want to mention we emailed you asking you to call your friends for us.

 

John organises the phone tree party for the night before polling day. He and his friends each call their friends, reading the three dot points from the Flora Party’s email more or less verbatim. The phone calls are made ‘on behalf of’ the Flora Party. The carriage service providers (the phone companies) used by John and his friends to make the calls do not “communicate” the matter and are therefore not “notifying entities”. The internet service provider the Flora Party uses to send the emails does not “communicate” the matter and therefore is not the ‘notifying entity’.

55.                Note 2 under subsection 321D(1) provides examples that may be covered by this section 321D, including how-to-vote cards, and printed material, internet advertisements, bulk text messages and bulk voice calls containing electoral matter. 

56.                Note 3 under subsection 321D(1) refers readers to the geographical application of section 321D, provided for by section 321E.

57.                Note 4 under subsection 321D(1) refers readers to the meaning of “communicate” for carriage service providers included in section 321B. See paragraph 34 of this Explanatory Memorandum.

58.                Subsection 321D(2) provides that for the purposes of subsection 321D(1), if electoral matter is communicated by an individual who is a disclosure entity, and is communicated on behalf of another disclosure entity which approved the content of the matter before it is communicated, the other disclosure entity (and not the individual) is the “notifying entity”.  This covers situations such as the communication by a candidate of electoral matter approved by a registered political party.  It ensures that the political party and not the candidate is the “notifying entity” which must notify particulars in accordance with subsection 321D(5).

Exceptions

59.                Subsection 321D(3) specifies exceptions to the requirement for particulars to be notified under section 321D.  Section 321D does not apply in relation to electoral matter that:

·          forms part of clothing or any other item that is intended to be worn on the body (paragraph 321D(3)(a)).  Communication using these items would generally involve the opportunity to engage with the wearer of those items and to seek any required clarification where the person who authorised the communication is unclear.  Furthermore, the durability of clothing and its utility for purposes unrelated to communication, such as protection from weather, means that clothing is likely to be displayed after an election. The inclusion of particulars on these items, perhaps years after an election, may imply that the notifying entity still holds a view expressed on an item of clothing when that is not the case. Therefore, the inclusion of particulars on clothing and other items intended to be worn may detract from, rather than support, the objects in section 321C.

·          forms part of a communication, or in any other circumstances, determined under subsection 321D(7) for the purposes of this paragraph. 

60.                Subsection 321D(4) specifies further exceptions to the requirement for particulars to be notified under section 321D in respect of matter communicated by, or on behalf of, a disclosure entity (and is not an electoral advertisement covered by paragraph 321D(1)(a)).  These exceptions are matter that forms part of:

·          the reporting of news, the presenting of current affairs or any editorial content in the news media (paragraph 321D(4)(a)).  This exception is intended to ensure that there is a free media able to comment on matters related to elections without being subject to authorisation requirements.

·          a communication engaged in solely for genuine satirical, academic or artistic purposes (paragraph 321D(4)(b)).  For a communication to be solely for genuine satirical, academic or artistic purposes, there can be no intent to affect voting in an election.  In the event that there are multiple purposes which incorporate such an intent, then the communication cannot be solely for genuine satirical, academic or artistic purposes.

·          an opinion poll or research relating to voting intentions at an election or by-election (paragraph 321D(4)(c)).  As opinion polling or research related to voting intentions has the purpose of collecting information from voters rather than communicating it, this exception is intended to allow information in these activities not be authorised, even if done by or on behalf of a disclosure entity.  The nature of opinion polling and research means that requiring authorisation, rather than preserving anonymity, could influence the information that voters are willing to provide and therefore the results of that poll or research. As discussed in paragraph 44, push polls are a form of advertising, not a form of opinion polling, and thus do not fall under the exception in paragraph 321D(4)(c).

·          a communication for personal purposes (paragraph 321D(4)(d)).  This exception is intended to ensure that personal communications which are for personal purposes and clearly not intended to be communicated more broadly do not require authorisation. Examples of personal purposes include where a candidate or supporter of a politically-active group calls a member of his/her family or a close personal friend and discusses election issues with no intention that their views will be distributed more widely or discusses their emotions and relationships in the campaign with a counsellor.

·          an internal communication of a notifying entity (paragraph 321D(4)(e)).  This exception is intended to ensure that internal communications of disclosure entities such as internal political party communications which are clearly not intended to be communicated more broadly, such as internal consultation on a campaign strategy, do not require authorisation.

·          a communication at a meeting of two or more persons if the identity of the person (the “speaker”) communicating at the meeting, and any disclosure entity on whose behalf the speaker is communicating, can reasonably be identified by the person or persons to whom the speaker is speaking (paragraph 321D(4)(f)).  ‘Meeting’ in this context is intended to refer to any assembly or gathering, including in-person, by telephone or using other mediums.  It would be expected that the speaker and relevant disclosure entity could reasonably be identified through a range of methods, such as introducing themselves or being introduced, or having signage present indicating who the speaker is and any relevant disclosure entity.

·          a live communication of a meeting covered by paragraph 321D(4)(f), but not any later communication of that meeting (paragraph 321D(4)(g)).  This removes the authorisation requirements from live communication, such as live broadcasting, without exempting later communication such as delayed broadcasting.

 

Notifying particulars

61.                Subsection 321D(5) specifies the particulars that the notifying entity must ensure are notified, in accordance with any requirements determined under subsection 321D(7).  These requirements are set out in a table in subsection 321D(5), and differ according to whether the communication:

·          is a type of printed matter specified in subparagraph 321D(5)(1)(b)(i);

·          was authorised by a disclosure entity; and

·          was authorised by a natural person. 

62.                The requirement for the notifying entity to ‘ensure’ particulars are notified allows for the possibility that they do not notify those particulars themselves in order to meet their obligation.

 

Example 8: ‘Ensure’ particulars are notified

 

Jason Birch is the spokesperson for a politically active group which reports expenditure under Part XX of the Electoral Act under the name “Citizens Ink”. Jason is being interviewed on Citizens Ink’s candidate recommendations for a Northern Territory electorate on a local radio station. The interviewer introduces Jason by saying:

 

I’m here with Jason Birch, the spokesperson for Citizens Ink, an advocacy group based across the border in Mackay. Jason, how’s it going?

 

Jason has met his obligation to notify particulars under subsection 321D(5) as the interviewer has notified all particulars required of Citizens Ink communications authorised by Jason. Jason does not need to repeat the particulars; by listening to the interviewer and verifying that all particulars have been notified, he has “ensured” that they have been notified.

Specified printed matter authorised by a disclosure entity

63.                Special rules apply to electoral matter communicated by a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how to vote card. These rules have been retained from old section 328 for the reasons outlined in paragraph 45. They are not intended to significantly detract from the ability of electoral matters to be communicated to voters.

64.                 If these types of communication are authorised by a disclosure entity that is not a natural person, item 1 requires the following particulars:

·          the name of the entity, which, if the entity has previously lodged a return under Part XX of the Electoral Act, must match the name of the entity used in the most recent return lodged in relation to the entity;

o    If the disclosure entity has not yet lodged a return under Part XX, but will or may be required to, the name they intend to use on the return should be used.  If the name subsequently used on the Part XX return differs from the name included as particulars, from the point in time that the Part XX return is lodged, the disclosure entity must use the name used in the Part XX return.  The inclusion of the name of the entity supports transparency by allowing voters to reconcile the name of an entity included in the particulars with returns under Part XX. It supports voters being able to inform themselves of the demonstrated interests of an authorising entity in the outcome of an election.

·          the address of the entity, with “address” as defined in section 321B;

·          the name of the natural person responsible for giving effect to the authorisation;

·          the name of the printer who printed the communication;

·          the address of the printer, with “address” as defined in section 321B.

65.                If a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how to vote card authorised by a natural person who is a disclosure entity, item 3 requires the following particulars:

·          the name of the person;

·          the address of the person, with “address” as defined in section 321B;

·          the name of the printer who printed the communication; and

·          the address of the printer, with “address” as defined in section 321B.

Other forms of communication by a disclosure entity

66.               Special rules also apply to disclosure entities when they communicate in mediums not mentioned in paragraph 65. If the entity is not a natural person, item 2 requires the following particulars:

·          the name of the entity, which, if the entity has previously lodged a return under Part XX of the Electoral Act, must match the name of the entity used in the most recent return lodged in relation to the entity;

o    If the disclosure entity has not yet lodged a return under Part XX, but will or may be required to, the name they intend to use on the return should be used.  If the name subsequently used on the Part XX return differs from the name included as particulars, from the point in time that the Part XX return is lodged, the disclosure entity must use the name used in the Part XX return. 

·          the relevant town or city of the entity, as defined in section 321B; and

·          the name of the natural person responsible for giving effect to the authorisation.

67.                The particulars contribute to the objects in section 321C in different ways. The inclusion of the name of the entity supports transparency by allowing voters to reconcile the name of an entity included in the particulars with returns under Part XX. It supports voters being able to inform themselves of the demonstrated interests of an authorising entity in the outcome of an election.

68.                The requirement to notify the relevant town or city provides further information to voters with respect to local issues. A voter may give more weight to a communication about a local issue in an election where the communication is made by a person or organisation in their own city or town, particularly where local interests differ from those of other areas. For example, a proposed infrastructure project or environmental policy being debated during an election period might disproportionately benefit one electorate while disadvantaging a neighbouring electorate. Information about the geographic source of communications on these issues is likely to be important to voters when they evaluate how much weight to give the communications in order to decide for whom to vote.

69.                The requirement to notify the name of the natural person responsible for giving effect to the authorisation is intended to: increase transparency and provide certainty for voters as to the veracity of the particulars; promote accountability within disclosure entities; and assist the Electoral Commission to enforce non-compliance, by providing a direct point of contact in relation to disclosure entities. This requirement is also intended to support the ability of people to take civil action if they consider the communication to be defamatory or otherwise unlawful, particularly where a disclosure entity is a non-legal person.

70.               If the disclosure entity is a natural person, for example, a candidate or a generous individual political donor, item 4 requires the following particulars:

·          the name of the person; and

·          the town or city in which the person lives.

Disclosure entities that are natural people communicating to small audiences or to people they know are expected to be frequently covered by the exemptions in subsection 321D(4), or able to comply with the requirements in item 4 relatively easily. Where an exception in 321D(4) does not apply, it is appropriate for voters to understand the source of the communication via the requirement to notify the particulars in item 4. For example, in an email containing electoral matter to a constituent or parliamentarian from another party, a member of parliament could use a signature block containing the required notifying particulars. (Note that if the parliamentarian to whom the email was sent was from the same party, the exception in paragraph 321D(4)(e) may apply).

Specified printed matter authorised by a non-disclosure entity

71.                As outlined in paragraph 63, special rules apply to electoral matter communicated by a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how to vote card. Non-disclosure entities, however, are subject to fewer requirements than disclosure entities. It is appropriate that disclosure entities be subject to more requirements because they are likely to seek to exert the most influence on voters. For communications not authorised by a natural person, disclosure entities must include the name of the natural person (see paragraph 64). In contrast, the name of the natural person does not need to be included for communications authorised by an entity that is neither a disclosure entity nor a natural person

72.                If these specified types of communication are authorised by an entity that is neither a disclosure entity nor a natural person, item 5 requires the following particulars:

·          the name of the entity;

·          the address of the entity, with “address” as defined in section 321B;

·          the name of the printer who printed the communication;

·          the address of the printer , with “address” as defined in section 321B.

73.                If a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card authorised by a natural person who is not a disclosure entity, item 7 requires the following particulars:

·          the name of the person;

·          the address of the person, with “address” as defined in section 321B;

·          the name of the printer who printed the communication;

·          the address of the printer, with “address” as defined in section 321B.

Other forms of communication by a non-disclosure entity

74.               Special rules also apply to non-disclosure entities when they communicate in mediums not mentioned in paragraph 72, for example, via a paid advertisement. If the entity is neither a disclosure entity nor a natural person, item 6 requires the following particulars:

·          the name of the entity; and

·          the relevant town or city, as defined in section 321B.

75.               If the entity is a natural person who is not a disclosure entity, item 8 requires the following particulars:

·          the name of the person; and

·          the town or city in which the person lives.

 

Subsection 321D(5) is a civil penalty provision

76.                Subsection 321D(5) is a civil penalty provision which is enforceable under the Regulatory Powers Act.  A person who fails to notify the particulars, or notifies incorrect particulars, contravenes this civil penalty provision.  The relevant civil penalty is 120 penalty units.  The amount of the relevant penalty is calculated in accordance with section 4AA of the Crimes Act 1914 , and is commensurate with similar Commonwealth regulatory regimes.

 

77.               Where a notifying entity that is not a legal entity, for example, a citizens’ group, contravenes subsection (5), subsection 321D(6) provides that for the purposes of the Electoral Act and the Regulatory Powers Act, each member, agent or officer (however described) of the entity who contributed to the contravention through action or inaction in their role would be individually responsible for not meeting the authorisation obligation of the notifying entity as required by subsection 321D(5). 

 



Example 9: Failure to notify by entity that is not a legal person

 

A registered political party’s how-to-vote cards does not include the correct particulars required by subsection 321D(5). According to the party’s constitution, all how to vote cards must be approved by the Director of Communication, the National President and the relevant Electorate Director. The Director of Communication, National President and the relevant Electorate Director are each subject to the civil penalty as individuals in relation to the non-compliant how to vote cards.

 

Example 10: Failure to notify by a body corporate

 

An incorporated legal entity has failed to comply with subsection 321D.  Subsection 321D(6) does not apply and the party is subject to the civil penalty associated with bodies corporate under subsection 82(5) of the Regulatory Powers Act. Under subsection 82(5) of the Regulatory Powers Act, bodies corporate are subject to a ‘corporate multiplier’ five times the civil penalty amount specified for individuals. The legal entity is thus subject to a civil penalty of 600 penalty units.

 

Example 11: Failure to notify by a Senate Group

 

Two independent candidates form a Senate group on the ballot paper for a Division.  Each candidate contributes funds to print how-to-vote cards to be distributed outside polling places, and the content of the cards is approved by the Senate group before the how to vote cards are distributed. 

 

If the required particulars of the Senate group were not notified, each candidate in the Senate Group is individually liable for up to the maximum civil sanction (120 penalty units) because the Senate Group  failed to include the required particulars when they approved the how to vote cards.

78.                Subsection 321D(7) allows the Electoral Commissioner to determine, by legislative instrument, exceptions in communications or circumstances in accordance with paragraph 321D(3)(b) of the Electoral Act, and paragraph 110C(3)(c) of the Referendum Act, and requirements or particulars for the purposes of one of more of the following:

·          subsection 321D(5) of the Electoral Act;

·          subsection 110C(5) of the Referendum Act;

·          subsection 79A(2) and paragraph 79A(6)(b) of the ABC Act;

·          paragraph 1(2)(b) and subclause 4(2) of Schedule 2 to the Broadcasting Services Act; and

·          subsection 70A(2) and paragraph 70A(6)(b) of the SBS Act.

79.                In making an instrument under new subsection 321D(7), the Electoral Commissioner is required to ensure that the requirements or particulars are consistent with the objects of the new Part as set out in new section 321C.  Those objects include allowing voters to know who is communicating electoral matter.  Given the variety of different mechanisms and technologies that can be used for communicating with voters, it is envisaged that the instrument may include different requirements or particulars for the different mechanisms and technologies. For example, for printed material it may be appropriate for the instrument to specify that the notifying particulars (e.g. the authorisation details) are to appear at the end (or bottom) of the communication, whereas for communication via telephony, it may be more appropriate for the requirements or particulars to specify that the notifying particulars are to be spoken at the beginning of the communication.  Subsection 33(3A) of the Acts Interpretation Act 1901 , would apply to the instrument under new subsection 321D(7), thereby enabling the instrument to contain different requirements or particulars to be determined for different classes of communications.

80.                The legislative instrument is a disallowable instrument under section 42 of the Legislation Act 2003 (the Legislation Act).  In making an instrument under subsection 321D(7), the Electoral Commissioner is expected to consult with relevant agencies, as required by section 17 of the Legislation Act. Such consultation is important to ensure the instrument is appropriate and is expected to include consultation with the Boards of the ABC, the SBS and the ACMA. Furthermore, the Electoral Commissioner is expected to take into account the consistency of the instrument with the objects specified in section 321C and the regulatory burden of any additional requirements.

Section 321E

81.                Section 321E provides for extended geographical application of section 321D.  This is intended to improve the ability to enforce alleged contraventions of the civil penalty provision.  The extended geographical application in subsection 321D(1) is consistent with that provided for by subsection 15.2(1) of the Criminal Code Act 1995 (the Criminal Code ) (extended geographical application - category B) which is applied to various offences in the Electoral Act, and is considered appropriate in relation to the civil penalty in section 321D.  The exception provided for by subsection 321D(2) is consistent with the defence in subsection 15.2(2) of the Criminal Code.

Section 321F

82.                Section 321F provides information-gathering powers to the Electoral Commissioner.  This section:

·          provides that section 321F applies to a person if the Electoral Commissioner has reason to believe that they have information or a document that is relevant to assessing compliance with section 321D (subsection 321F(1))

·          allows the Electoral Commissioner to require a person, by written notice, to give information or produce documents or make copies of any such documents and to produce to the Commissioner, within the period an in the manner and form specified in the notice, any such information, documents or copies (subsection 321F(2))

·          requires the Electoral Commissioner to have regard to the likely costs in complying with any requirement before giving a notice (subsection 321F(3)), although regard may be had to other matters (subsection 321F(4))

·          requires a notice to specify the effect of sections 137.1 and 137.2 of the Criminal Code (subsection 321F(5)).  Sections 137.1 and 137.2 of the Criminal Code provide offences for production of false or misleading documents and provision of false or misleading information

·          entitles a person to be paid reasonable compensation by the Commonwealth for complying with a requirement to make copies of any documents required by a notice under paragraph 321F(2)(c) (subsection 321F(6)).

Section 321G

83.                Section 321G provides powers for the Electoral Commissioner to inspect or copy a document, and make and retain copies of, documents produced under section 321F.  The Electoral Commissioner may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 321F(2)(c).

Section 321H

84.                Section 321H provides for the retention of documents.  This section:

·          allows the Electoral Commissioner to take possession of a document produced under section 321F and retain it for as long as necessary (subsection 321H(1))

·          entitles a person otherwise entitled to a possession of the document to be supplied a certified copy by the Electoral Commissioner as soon as possible (subsection 321H(2)) 

·          allows the certified copy to  be received in all courts and tribunals as evidence as if it were the original (subsection 321H(3))

·          requires, until such time as a certified copy is supplied, the Electoral Commissioner to permit a person otherwise entitled to possession of a document, or a person authorised by that person, to inspect and make copies of the document, at such times and places as he or she thinks appropriate (subsection 321H(4).

Item 11 - Sections 328 to 328B

85.                This item repeals section 328 to 328B.  These sections provided authorisation requirements in relation to printing and publication of particular electoral matter, the publication of electoral advertisements on the internet and requirements relating to how-to-vote cards.  These specific requirements are superseded by new section 321D, which provides requirements for authorisations. 

 

Item 12 - Sections 331 and 334

86.                This item repeals sections 331 and 334. Section 331 provided specific requirements for headings in electoral advertisements in newspapers, magazines and other periodicals.  This is superseded by the authorisation requirements under new subsection 321D which apply to all paid advertisements containing electoral matter.  Section 334 provided a prohibition on the writing, drawing or depicting of electoral matter directly on any roadway, footpath, building, vehicle, vessel, hoarding or place.  This prohibition is unnecessary as new section 321D provides requirements for authorisations.

 

Item 13 - Subsection 351(5)

87.                This item amends subsection 351(5) to reflect the authorisation requirements in new section 321D. Section 351 relates to the publication of matter regarding candidates in elections, without the written authorisation or authority of the relevant candidate.  Subsection 351(5) is updated to replace references to authorisations under the repealed sections 328, 328A and 328B and refer to the new requirements of section 321D. 

 

Item 14 - Before subsection 383(1)

Item 15 - Before subsection 383(2)

88.                This item inserts headings to subsections 383(1) and 383(2) to make it clear that they concern restraining injunctions and performance injunctions respectively.

 

Item 16 - After subsection 383(2)

89.                This item inserts a power for the Federal Court to grant an injunction restraining a carriage service provider from supplying a listed carriage service to the notifying entity in certain circumstances.  The power is available if an injunction could be granted under subsections 383(1) or 383(2) of the Electoral Act in relation to a contravention or proposed contravention of new section 321D, and the carriage service provider is supplying, or is to supply, a listed carriage service to the notifying entity, and that listed carriage service is to be used solely for the making of bulk voice calls (for example, through the use of robocalls) or sending bulk test messages communicating an electoral matter.  A candidate in the election or the Electoral Commission can make an application to the Federal Court for the grant of an injunction if these criteria are met.

90.                The term solely indicates that the listed carriage service being used by the notifying entity is only being used to make the bulk voice calls or send the bulk text messages, as to apply the power in relation to a listed carriage service that is being used for other purposes could give rise to safety or other concerns (such as being unable to contact essential services using the listed carriage service).  The injunction can only be granted in relation to the specific carriage service that is being supplied to the notifying entity.

91.                The item also inserts a power for the Federal Court to grant an injunction from restraining a broadcaster from broadcasting the matter if an injunction could be granted under current subsections 383(1) or 383(2) of the Electoral Act in relation to a contravention or proposed contravention of new section 321D (the requirement to authorise certain electoral matters).  A candidate in the election or the Electoral Commission can make an application to the Federal Court for the grant of an injunction if these criteria are met.

92.                This item also inserts a heading to subsection 383(3) to make it clear that it concerns interim injunctions.

 

Item 17 - Subsection 383(3)

Item 18 - Subsection 383(3)

93.                These items amend subsection 383(3) relating to interim injunctions, to allow the Federal Court to grant an interim injunction restraining a carriage service provider from supplying a listed carriage service or a broadcaster from broadcasting matter pending the consideration and determination of an application made under subsections 383(2A) or (2B). 



 

Item 19 - Before subsection 383(4)

Item 20 - Subsection 383(4)

94.                These items insert a heading to subsection 383(4) to make it clear that it provides for discharging and varying injunctions, and amend subsection 383(4) to allow the Federal Court to discharge or vary any injunction made under section 383, including the new injunctions relating to carriage service providers and broadcasters.

 

Item 21 - Before subsection 383(5)

Item 22 - Subsection 383(5)

Item 23 - Subsection 383(6)

95.                Item 21 inserts a heading to subsection 383(5) to make it clear that it relates to the consideration by the Federal Court of past and future conduct.

96.                Item 22 amends subsection 383(5), which relates to the exercise of power by the Federal Court to grant a restraining injunction and the extent to which past and future conduct can be considered in exercising its power to grant an injunction.  The amendment limits the application of subsection 383(5) to subsection 383(1).  This makes it clear that subsection 383(5) is irrelevant to injunctions restraining carriage service providers and broadcasters under new subsections 383(2A) and (2B).  

97.                Item 23 amends subsection 383(6), which relates to the exercise of power by the Federal Court to grant an injunction requiring a person to do an act or thing, and the extent to which past and future conduct can be considered in exercising its power to grant an injunction.  The amendment limits the application of 383(6) to subsections 383(1) and (2).  This makes it clear that subsection 383(6) is irrelevant to injunctions restraining carriage service providers and broadcasters under new subsections 383(2A) and (2B).

 

Item 24 - After subsection 383(6)

98.                This item inserts a new subsection 383(6A) to provide the circumstances in which the Federal Court may exercise its power to grant an injunction if an application to the Court is made under new subsections 383(2A) or (2B).  The Federal Court may grant an injunction if it is satisfied that the notifying entity has contravened section 321D or it appears that it is likely that the notifying entity will contravene section 321D.  It is the conduct of the notifying entity that is relevant, rather than the conduct of the carriage service provider or broadcaster.

99.                This item also inserts a heading above subsection 383(7) to make it clear that this subsection provides that there is no requirement to give any undertakings as to damages.

 

Item 25 - Before subsection 383(10)

100.            This item inserts a heading to subsection 383(10) to make clear that the section relates to section 383 not limiting other powers of the Federal Court.

 



Item 26 - At the end of section 383

101.            This item inserts definitions for the purposes of the section 383 of the Electoral Act.  It inserts a definition of the term “broadcaster” which will capture both broadcasters within the meaning of the Broadcasting Services Act, and the national broadcasters (the ABC and the SBS).

102.            The item also inserts a definition of “bulk text message”, which means an electronic message (within the meaning of the Spam Act 2003 ) that is sent, in bulk, to electronic addresses in connection with telephone accounts.  The term ‘bulk’ is to be given its ordinary meaning, and whether an electronic message is sent, in bulk, to electronic addresses in connection with telephone accounts will turn on the circumstances of individual cases.

103.            The item also inserts a definition of “bulk voice call”, which means a call, or calls, that send in bulk a pre-recorded message to standard telephone services.  The effect of this definition would be to capture pre-recorded voice calls, otherwise known as ‘robocalls’.  The term bulk is to be given its ordinary meaning, and whether a call, or calls, are sent in bulk will turn on the circumstances of individual cases.

 

Item 27 - After section 384

104.            This item inserts new section 384A. 

105.            Subsection 384A(1) provides that new section 321D is enforceable under Parts 4 and 6 of the Regulatory Powers Act.  A note is inserted under subsection 384A(1) to indicate that Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision. 

106.            Subsection 384A(2) specifies that, in relation to section 321D:

·          the Electoral Commissioner is an authorised applicant for the purposes of Part 4 of the Regulatory Powers Act.  This allows the Electoral Commissioner to apply to the Federal Court for an order that a person who is alleged to have contravened section 321D pay the Commonwealth a pecuniary penalty.

·          the Electoral Commissioner is an authorised person for the purposes of Part 6 of the Regulatory Powers Act.  This allows the Electoral Commissioner to accept an undertaking relating to compliance with section 321D, which may be enforced in the Federal Court.

·          the Federal Court of Australia is a relevant Court for the purposes of Parts 4 and 6 of the Regulatory Powers Act.

 

Item 28 - Section 385A

107.            This item repeals and substitutes section 385A. This section relates to evidence of authorship or authorisation of material, and ensures admissibility of evidence to facilitate proof that a person named in an authorisation or the printer or author of certain matter is connected with the material.  The section is updated to reflect the broader language of new section 321D which refers to communications of electoral matter rather than referring to specific mediums, and to ensure that applies to a contravention of the new civil penalty provision in that section as well as offences.

Referendum (Machinery Provisions) Act 1984

 

Item 29 - Subsection 3(1)

108.            This item inserts definitions of “carriage service provider”, “civil penalty provision”, “listed carriage service” and “Regulatory Powers Act” into the Referendum (Machinery Provisions) Act 1984 (the Referendum Act).  These definitions are the same as those used in items 1 and 3 relevant to the Electoral Act.  Further explanation on these definitions are at paragraphs 11, 12, 15 and 16.

 

Item 30 - After Part VIII

109.            This item inserts new Part IX of the Referendum Act dealing with authorisation of referendum matter.

 

Division 1 - Preliminary

110.            Section 110A provides the following definitions for the purposes of Part IX, which are addressed below.

“Address”

111.            “Address” means different things depending on whether the person is a natural person or an entity. For a natural person, “address” means a full street address and suburb or locality at which the person can be contacted. For an entity with a principal office, “address” means a full street address and suburb or locality of the office. For an entity without a principal office, but with premises, “address” means a full street address and suburb or locality of the premises. For an entity with neither a principal office nor premises, “address” means a full street address and suburb or locality at which the natural person who was responsible for giving effect to the authorisation can be contacted.

112.            However an “address” for the purposes of Part XXA is not a post office box for either a natural person or an entity. The definition of “address” is relevant to the particulars required to be notified for certain types of printed matter in subsection 321D(5).

“Ancillary contravention”

113.            “Ancillary contravention” of section 110C means a contravention of that section as a result of section 92 of the Regulatory Powers Act.  Specific activities, referred to as ancillary contraventions, are taken to be contraventions under section 92 of the Regulatory Powers Act.  In particular, these activities are: attempting a contravention; aiding, abetting, counselling or procuring a contravention; inducing a contravention, being knowingly concerned in a contravention; or conspiring with others to affect a contravention.

“Authorises”

114.            A person “authorises” the communication of referendum matter only if the person approves the content of the matter before it is communicated or, if the content is not approved before the matter is communicated, the person communicates the matter.  This provision is intended to ensure that the person who is considered to have authorised the communication of referendum matter is the person who is responsible for the communication rather than other persons involved in the communication who may not necessarily be responsible.  Responsibility is demonstrated by approving the content of matter before it is communicated, or having sufficient authority to communicate matter without content being approved by someone else. 

115.            The definition of “authorises” is relevant to the requirements to notify particulars under new subsection 110C(5).  There are also specific exclusions from the term “communicate” (see definition of “communicate”).

116.            Two specific examples are provided under the definition of “authorises”.  In the case of a call centre, the person who was originally responsible for approving the content of the phone calls from the call centre is the person who authorises the communication.  In the case of an email whose content has not previously been approved, the person who sends the email authorises the communication.  The additional examples provided under the Electoral Act’s definition of “authorises” (see paragraph 32) are also relevant to the definition, if the content involved in those examples was referendum matter rather than electoral matter.

“Communicate”

117.            A carriage service provider does not “communicate” referendum matter merely because the carriage service provider supplies the listed carriage service used to communicate the matter.  This definition makes it clear that telecommunications and internet service providers who merely provide a service which is being used by an entity to communicate referendum matter is not communicating or authorising the communication of the matter. 

“Conduct”

118.            “Conduct” means an act or an omission to perform an act.

“Disclosure entity”

119.            A person or entity is a “disclosure entity” at a particular time if the person or entity is any of the following at that time:

·          a registered political party (within the meaning of the Electoral Act) (paragraph (a)).  Under subsection 4(1) of the Electoral Act, “registered political party” means a political party that is registered under Part XI of the Electoral Act.

·          an associated entity (within the meaning of Part XX of the Electoral Act) (paragraph (b)).  “Associated entity” is defined in subsection 287(1) of the Electoral Act.  Examples of associated entities include ‘500 clubs’, ‘think tanks’, registered clubs, service companies, trade unions and corporate party members, provided that they fall within the relevant definition.

·          a person who is or will be required to provide a return under section 314AEB of the Electoral Act (except a return provided solely under subparagraph 314AEB(1)(a)(v) of that Act) for the financial year in which the time occurs (paragraph (c)).  This provision includes those persons who are required to provide a return for the financial year in which the communication occurs, or who will be required to (despite the financial year not having concluded). 

-           Section 314AEB covers persons who have incurred specified political expenditure. 

-           Subparagraph 314AEB(1)(a)(v) refers to the carrying out of an opinion poll, or other research, relating to an election or the voting intentions of electors.  Excluding persons or entities that are or will be required to provide a return solely for incurring expenditure for opinion polling or research related to voting intents is consistent with the position that communication of this type is an exception to the authorisation requirements by virtue of paragraph 110C(4)(c).

·          a person who, based on conduct in previous financial years, may be required to provide a return under section 314AEB of that Act (except a return provided solely under subparagraph 314AEB(1)(a)(v) of that Act) for the financial year in which the time occurs (paragraph(d)). This is intended to cover the circumstance where persons have previously provided a return, and although they are not yet a person who is or will be required to provide a return for the financial year in which the communication occurs, their previous conduct indicates a likelihood that they will be required to provide a return for the financial year. 

·          a person who has incurred expenditure in the period of 12 months before the day the writ for the referendum is issued exceeding the amount referred to in paragraph 314AEB(1)(b) of the Electoral Act, in relation to referendum matter relating to the referendum (subparagraph (e)(i).  This is intended to capture persons who spend above the disclosure threshold (currently $13,200) on a referendum issue in the twelve months prior to the issue of the writ for a referendum on that issue. It is specific to each referendum and does not apply in relation to referendums on issues in relation to which an entity has not spent an amount above the disclosure threshold in the twelve months prior to the issue of the relevant writ.

·          a person who expects to incur expenditure exceeding the amount referred to in paragraph 314AEB(1)(b) of the Electoral Act, in relation to referendum matter relating to the referendum (subparagraph (e)(ii)). Like with subparagraph (e)(i), this subparagraph is specific to each referendum. Fundraising targets, loans and contracts are non-exhaustive examples of evidence that may demonstrate that a person expects to incur a specified amount of expenditure for the purposes of this subparagraph.

·          a Senator or member of the House of Representatives (paragraph (f)).

120.            Paragraph (e) of the definition of “disclosure threshold” is intended to capture entities incurring significant political expenditure in relation to a given referendum.  It does not operate in relation to a financial year, as with Part XX of the Electoral Act.  This ensures that all expenditure relevant to a particular referendum is captured in the threshold rather than expenditure being split over the end of one financial year, and the beginning of the next financial year.



“Primary contravention”

121.            “Primary contravention” of section 110C means a contravention of that section that is not an ancillary contravention (also defined in new section 110A) of that section. 

 “Referendum matter”

122.            “Referendum matter” means matter intended or calculated to affect the result of a referendum. This definition uses the terminology that previously appeared in section 121, which is repealed by item 31. 

“Relevant town or city”

123.            “Relevant town or city” in relation to an entity that authorised the communication of referendum matter means different things depending on the situation of the entity. For an entity with a principal office, “relevant town or city” means the town or city in which the office is located. For an entity without a principal office, but with premises, “relevant town or city” means the town or city in which the premises are located. For an entity with neither a principal office nor premises, “relevant town or city” means the town or city in which the natural person who was responsible for giving effect to the authorisation lives.

Section 110B

124.            Section 110B provides the objects of new Part IX of the Referendum Act. Subsection 110B(1) provides that the object of Part IX is to promote free and informed voting at referendums by enhancing the transparency, accountability and traceability of communications with voters.  These objects are consistent with the objects in new section 321C of the Electoral Act, but applicable to referendum matter rather than electoral matter.

125.            Subsection 110B(2) specifies how Part IX aims to achieve the objects in subsection 110B(1), reflecting the requirements contained in new section 110C.  This is by requiring identifying particulars of the person who authorised the communication of specified referendum matter to be notified.  Specified referendum matter is one of two types.  The first type of matter is an advertisement relating to the referendum where all or part of the distribution or production is paid for.  The second type is matter communicated by, or on behalf of, a disclosure entity as defined in new section 110A.  Subsection 110(B)(2) also provides that Part IX aims to achieve transparency by ensuring identifying details are clearly identifiable, irrespective of how the matter is communicated.

126.            Subsection 110B(3) notes that new Part IX is not intended to detract from the ability of referendum matters to be communicated to voters, and voters’ ability to communicate with each other on referendum matters. This highlights that, when applying the requirements in new section 110C, public debate should be enhanced through increased transparency and accountability, and not stilted by red tape that does not contribute to the objects specified in new section 110B.

 



Division 2 - Authorisation of certain referendum matter

 

Section 110C

127.            Subsection 110C(1) specifies the requirements for referendum matter, as defined in new section 110A, to be authorised. 

128.            Under subsection 110C(1), referendum matter must be communicated to a person to fall within the scope of the requirement.  As referendum matter is defined according to the intent of the communicator and is not specific as to its form, any method of communication is covered, including all methods of displaying, publishing or distributing visual, audio or audio-visual material and face-to-face communication containing referendum matter.  However, in accordance with the definition of “communicate” in new section 110A, communication does not include the supply of a listed carriage service by a carriage service provider.

129.            Under paragraph 110C(1)(a), in addition to referendum matter being communicated to a person, all of the following must apply for referendum matter (in the form of an advertisement) to require an authorisation:

·          the matter is an advertisement relating to a referendum (subparagraph 110C(1)(a)(i)).  In this context, advertisement takes its ordinary meaning.  The Macquarie Dictionary defines “advertisement” as ‘any device or public announcement, as a printed notice in a newspaper, a commercial film on television, a neon sign, etc., designed to attract public attention, bring in custom’ etc.  Any advertisement containing referendum matter is intended to be covered.

·          all or part of the distribution or production of the production of the advertisement, was paid for (subparagraph 110C(1)(a)(ii)).  In this context, ‘paid for’ is intended to include the incurring of any expense related to the production or distribution of the advertisement, in addition to any payments made.  Being ‘paid for’ is also intended to include in kind payments where no money is involved, such as bartering or exchange arrangements.  It is also notable that it is irrelevant who paid for the advertisement, and that this could be someone other than the person who approved the content of the advertisement.

·          the content of the advertisement was approved by a person (the “notifying entity”), whether or not that person is the person who paid for the distribution or production of the advertisement (subparagraph 110C(1)(b)(iii)). 

130.            If all the criteria specified in paragraph 110C(1)(a) do not apply, but the referendum matter is communicated via a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card, and the content was communicated by a person, paragraph 110C(1)(b) provides that section 110C applies to the communication.

131.            Under paragraph 110C(1)(c), where referendum matter is communicated to a person and is not covered by paragraphs 110C(1)(a) or (b), authorisation is required where the matter is communicated by, or on behalf of, a disclosure entity (the “notifying entity”). 

132.            “Disclosure entity” is defined in new section 110A.  The provision captures communication by, or on behalf of, those who have made, or intend to make, a significant financial investment in influencing the result of the referendum. It also captures established and permanent parts of the political landscape relevant to referendums, that is, registered political parties and their associated entities. This ensures that the coverage of the requirement is limited to an objectively defined class of persons.

133.            Note 1 under subsection 110C(1) indicates matter may be communicated on behalf of an entity whether or not the entity pays for the communication of the matter.  In this context, where matter is being communicated for the benefit of, and at the instruction or request of, the disclosure entity, it will be considered to be communicated ‘on behalf of’ the disclosure entity.  The examples provided under paragraph 47 relevant to the Electoral Act are also relevant to the interpretation of ‘on behalf of’, if the content involved in those examples was referendum matter rather than electoral matter and the relevant requirements were those in section 110C.

134.            Note 2 under subsection 110C(1) to provides examples that may be covered by this section including how-to-vote cards, and printed material, internet advertisements, bulk text messages and bulk voice calls containing referendum matter. 

135.            Note 3 under subsection 110C(1) refers readers to the geographical application of section 110C, provided for by section 110D.

136.            Note 4 under subsection 110C(1) refers readers to the meaning of “communicate” for carriage service providers included in section 110A.

137.            Subsection 110C(2) provides that for the purposes of subsection 110C(1), if electoral matter is communicated by an individual who is a disclosure entity, and is communicated on behalf of another disclosure entity which approved the content of the matter before it is communicated, the other disclosure entity (and not the individual) is the “notifying entity”.

Exceptions

138.            Subsection 110C(3) specifies exceptions to the requirement for particulars to be notified under section 110C(5).  Section 110C does not apply in relation to referendum matter that:

·          forms part of clothing or any other item that is intended to be worn on the body (paragraph 110C(3)(a)).  Communication using these items would generally involve the opportunity to engage with the wearer of those items and to seek any required clarification where the person who authorised the communication is unclear.  Furthermore, the durability of clothing and its utility for purposes unrelated to communication, such as protection from weather, means that clothing is likely to be displayed after a referendum.  The inclusion of particulars on these items, perhaps years after a referendum, may imply that the notifying entity still holds a view expressed on an item of clothing when that is not the case.  Therefore, the inclusion of particulars on clothing and other items intended to be worn may detract from, rather than support, the objects in section 110B.

·          is communicated by or on behalf of a State, a Territory or an authority of a State or Territory (paragraph 110C(3)(b)). The Commonwealth does not intend to infringe, in any way, the right of the States and Territories to influence the voting in referendums implied by the double majority mechanism in section 128 of the Constitution.

·          forms part of a communication, or in any other circumstances, determined under subsection 321D(7) of the Electoral Act for the purposes of paragraph 110C(3)(c) (paragraph 110C(3)(c)).

139.            Subsection 110C(4) specifies further exceptions to the requirement for particulars to be notified under section 110C in respect of matter communicated by, or on behalf of, a disclosure entity (and is not an advertisement relating to a referendum) covered by paragraph 110C(1)(a).  These exceptions are equivalent to those provided for by new subsection 321D(4) (see paragraph 53), but relevant to referendum matter rather than electoral matter, and in relation to paragraph 321D(4)(c) relating to voting intentions at a referendum rather than an election of by-election.

Notifying particulars

140.            Subsection 110C(5) specifies the particulars that the notifying entity must ensure are notified, in accordance with any requirements determined under subsection 321D(7) of the Electoral Act.  As with the requirements for elections set out in subsection 321D(5) of the Electoral Act, these requirements are set out in a table in subsection 110C(5), and differ according to whether the communication:

·          is a type of printed matter specified in subparagraph 110C(1)(b)(i);

·          was authorised by a disclosure entity; and

·          was authorised by a natural person. 

The way in which the requirements differ according to these factors is the same as in elections, and is for the same reasons. These differences and reasons are set out in paragraphs 63 to 75.

141.            The requirement for the notifying entity to ‘ensure’ particulars are notified allows for the possibility that they do not notify those particulars themselves in order to meet their obligation. 

 

Example 12: ‘Ensure’ particulars are notified

 

Humphrey Moore is the spokesperson of a group that has raised $500,000 for an upcoming referendum. As the funds were raised with the express purpose of spending them on, and the group expects to spend them all on, expressing the group’s views on the referendum, the group is a disclosure entity when it communicates referendum matter, or referendum matter is communicated on their behalf. The day after the writ for the referendum is issued, Humphrey is interviewed on his group’s views on a local radio station. The interviewer introduces Humphrey by saying:

 

I’m here with Humphrey Moore, the spokesperson for a Sydney group which has just raised $500,000 for its referendum campaign. Humphrey, what can you tell us about the upcoming referendum?

               

Humphrey has met most, but not all, of his obligation to notify particulars under subsection 110C(5) as the interviewer has notified most of the particulars required of his group’s communications authorised by Humphrey. Humphrey does not need to repeat the notifying particulars announced by the interviewer; by listening to the interviewer and verifying that they have been notified, he has ‘ensured’ that they have been notified. However, the interviewer did not notify the name of the disclosure entity (Humphrey’s group’s name), as required by subparagraph 110C(5)(a)(i), so Humphrey needs to make sure either he or the interviewer announces his group’s name during the interview.

Subsection 110C(5) is a civil penalty provision

142.            Subsection 110C(5) is a civil penalty provision which is enforceable under the Regulatory Powers Act.  A person who fails to notify the particulars, or notifies incorrect particulars, contravenes this civil penalty provision.  The relevant civil penalty is 120 penalty units.  The amount of the relevant penalty is calculated in accordance with section 4AA of the Crimes Act 1914 , and is commensurate with similar Commonwealth regulatory regimes.

143.            Subsection 110C(6) provides that for the purposes of the Referendum Act and the Regulatory Powers Act, if a notifying entity that is not a legal entity fails to comply with subsection 110C(5), then each senior officer (however described) of the notifying entity is taken to fail to comply with that subsection.  The effect of this provision is that the senior officers of a collective of persons that is a notifying entity under subsection 110C(5) but is not a legal entity, such as members of political parties or interest groups, are taken to have failed to comply as individuals with the civil penalty applicable to subsection 110C(5). 

Section 110D

144.            Section 110D provides for extended geographical application of section 110C.  This is intended to improve the ability to enforce alleged contraventions of the civil penalty provision.  The extended geographical application in subsection 110C(1) is consistent with that provided for by subsection 15.2(1) of the Criminal Code (extended geographical application -category B) which previously applied to the authorisation requirements for internet advertisements in section 121A (repealed by item 31), and applies to misleading and deceptive publications under section 122 of the Referendum Act.  The exception provided for by subsection 110D(2) is consistent with the defence in subsection 15.2(2) of the Criminal Code.

Section 110E

145.            Section 110E provides information-gathering powers to the Electoral Commissioner.  These powers are consistent with the information gathering powers provided to the Electoral Commissioner under new section 321F of the Electoral Act (see paragraph 65), but relate to information or a document that is relevant to assessing compliance with section 110C rather than section 321D of the Electoral Act.

Section 110F

146.            Section 110F provides powers for the Electoral Commissioner to inspect or copy a document, and make and retain copies of, documents produced under section 110F.  The Electoral Commissioner may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 110E(2)(c).



Section 110G

147.            Section 110G provides for the retention of documents.  This section is consistent with new section 321H of the Electoral Act (see paragraph 67), but relates to documents produced under section 110E rather than 321F.

 

Item 31 - Sections 121, 121A and 124

148.            This item repeals section 121 and 121A of the Referendum Act. Section 121 provided the authorisation requirements relating to the printing and publication of referendum matter. Section 121A provided the authorisation requirements relating to the publication of paid internet advertisements containing referendum matter.  These sections are superseded by the authorisation requirements under new section 110C. 

149.            This item also repeals section 124 which provided specific requirements for headings in advertisements containing referendum matter in newspapers, magazines and other periodicals.  This section is superseded by the authorisation requirements under new section 110C, which apply to all paid advertisements containing referendum matter.

 

Item 32 - Before subsection 139(1)

Item 33 - Before subsection 139(2)

150.            This item inserts headings to subsections 138 (1) and (2) to make it clear that they concern restraining injunctions and performance injunctions respectively.

 

Item 34 - After subsection 139(2)

151.            This item inserts a power for the Federal Court to grant an injunction restraining a carriage service provider from supplying a listed carriage service to the notifying entity in certain circumstances.  The power is available if an injunction could be granted under current subsections 139(1) or 139(2) of the Referendum Act in relation to a contravention or proposed contravention of new section 110C (authorisation of certain referendum matters) and the carriage service provider is supplying, or is to supply, a listed carriage service to the notifying entity, and that listed carriage service is to be used solely for the making of bulk voice calls (for example, through the use of robocalls) or sending bulk text messages communicating an electoral matter.  The Electoral Commission can make an application to the Federal Court for the grant of an injunction if these criteria are met. 

152.            The term solely indicates that the listed carriage service being used by the notifying entity is only being used to make the bulk voice calls or send the bulk text messages, as to apply the power in relation to a listed carriage service that is being used for other purposes could give rise to safety or other issues (such as being unable to contact essential services using the listed carriage service).  The injunction can only be granted in relation to the specific carriage service that is being supplied to the notifying entity.

153.            The item also inserts a power for the Federal Court to grant an injunction from restraining a broadcaster from broadcasting the matter if an injunction could be granted under current subsections 139(1) or 139(2) of the Referendum Act in relation to a contravention or proposed contravention of new section 110C (authorisation of certain referendum matters).  The Electoral Commission can make an application to the Federal Court for the grant of an injunction if these criteria are met.

154.            This item also inserts a heading to subsection 139(3) to make it clear that it concerns interim injunctions.

 

Item 35 - Subsection 139(3)

Item 36 - Subsection 139(3)

155.            These items amend subsection 139(3) relating to interim injunctions, to allow the Federal Court to grant an interim injunction restraining a carriage service provider from supplying a listed carriage service or a broadcaster from broadcasting matter pending the consideration and determination of an application made under new subsection 139(2A) or (2B). 

 

Item 37 - Before subsection 139(4)

Item 38 - Subsection 139(4)

156.            These items insert a heading to subsection 139(4) to make it clear that it provides for discharging and varying injunctions, and amend subsection 139(4) to allow the Federal Court to discharge or vary any injunction made under section 139, including the new injunctions relating to carriage service providers and broadcasters.

 

Item 39 - Before subsection 139(5)

Item 40 - Subsection 139(5)

Item 41 - Subsection 139(6)

157.            Item 39 inserts a heading to subsection 139(5) to make it clear that it relates to the consideration by the Federal Court of past and future conduct.

158.            Item 40 amends subsection 139(5), which relates to the exercise of power by the Federal Court to grant a restraining injunction and the extent to which past and future conduct can be considered in exercising its power to grant an injunction.  The amendment limits the application of subsection 139(5) to subsection 139(1).  This makes it clear that subsection 139(5) is irrelevant to injunctions restraining carriage service providers and broadcasters under new subsections 139(2A) and (2B).  

159.            Item 41 amends subsection 139(6), which relates to the exercise of power by the Federal Court to grant an injunction requiring a person to do an act or thing, and the extent to which past and future conduct can be considered in exercising its power to grant an injunction.  The amendment limits the application of 139(6) to subsections 139(1) and (2).  This makes it clear that subsection 139(6) is irrelevant to injunctions restraining carriage service providers and broadcasters under new subsections 139(2A) and (2B).

 



Item 42 - After subsection 139(6)

160.            This item inserts a new subsection 139(6A) to provide the circumstances in which the Federal Court may exercise its power to grant an injunction if an application to the Court is made under new subsections 139(2A) or (2B).  The Federal Court may grant an injunction if it is satisfied that the notifying entity has contravened section 110C or it appears that it is likely that the notifying entity will contravene section 110C.  It is the conduct of the notifying entity that is relevant, rather than the conduct of the carriage service provider or broadcaster.

161.            This item also inserts a heading above subsection 139(7) to make it clear that this subsection provides that there is no requirement to give any undertakings as to damages.

Item 43 - Before subsection 139(10)

162.            This item inserts a heading to subsection 139(10) to make clear that the section relates to section 139 not limiting other powers of the Federal Court.

 

Item 44 - At the end of section 139

163.            This item inserts definitions of “broadcaster”, “bulk text message”, “bulk voice call” for the purposes of section 139.  These definitions are the same as those used in items 1 and 3 relevant to the Electoral Act.  Further explanation on these definitions are at paragraphs 84 to 86.

 

Item 45 - After section 140

164.            This item inserts new section 140AAA. 

165.            Subsection 140AAA(1) provides that new section 110C is enforceable under Parts 4 and 6 of the Regulatory Powers Act.  A note is inserted under subsection 140AAA(1) to indicate that Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision. The note also indicates that Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with section 110C.

166.            Subsection 140AAA(2) specifies that, in relation to section 110C:

·          the Electoral Commissioner is an authorised applicant for the purposes of Part 4 of the Regulatory Powers Act.  This allows the Electoral Commissioner to apply to the Federal Court for an order that a person who is alleged to have contravened section 110C pay the Commonwealth a pecuniary penalty.

·          the Electoral Commissioner is an authorised person for the purposes of Part 6 of the Regulatory Powers Act.   This allows the Electoral Commissioner to accept an undertaking relating to compliance with section 110C, which may be enforced in the Federal Court.

·          the Federal Court of Australia is a relevant Court for the purposes of Parts 4 and 6 of the Regulatory Powers Act.

 

Item 46 - Section 140AA

167.            This item repeals and substitutes section 140AA. This section relates to evidence of authorship or authorisation of material, and ensures admissibility of evidence to facilitate proof that a person named in an authorisation or the printer or author of certain matter is connected with the material.  The section is updated to reflect the broader language of new section 110C which refers to communications of referendum matter rather than referring to specific mediums, and to ensure that applies to a contravention of the new civil penalty provision in that section as well as offences.

Part 2—Amendments of broadcasting legislation

Australian Broadcasting Corporation Act 1983

Item 47 - Subsection 79A(2)

168.            This item repeals the current subsection 79A(2) of the ABC Act and substitutes a new subsection. 

169.            The current framework provides that if the Australian Broadcasting Corporation (the ABC) broadcasts a political matter, it must cause the required particulars to be announced (if broadcast by radio) or televised immediately after the broadcast.  It also sets out the method that the required particulars are to be broadcast based on whether the matter was broadcast by radio or televised.  If a matter is broadcast by radio, the required particulars are to be announced.  If a matter is televised, the required particulars (with the exception of the name of every speaker) must be announced and transmitted in the form of images of words. 

170.            The new subsection is similar to the current framework in that it requires the ABC to ensure that required particulars are to be announced or televised, and sets out the method in which they are to be announced or televised.  However, there are some differences to ensure consistency with similar provisions that are included in the Electoral Act, the Referendum Act and other broadcasting legislation. 

171.            The new subsection includes a subheading before subsection 79A(2) to make it clear that the subsection relates to announcing required particulars.

172.            The new provision does not include the legislative requirement to announce or televise the required particulars immediately after the broadcast.  It will instead require that, where the ABC broadcasts political matter at the request of another person, the ABC must cause required particulars to be broadcast in accordance with any requirement determined under subsection 321D(7) of the Electoral Act.  When making the legislative instrument under subsection 321D(7), the Electoral Commissioner is required to consult with relevant stakeholders, including the ABC.  

173.            The omission of the requirement to broadcast required particulars immediately after the political matter is intended to allow for flexibility for the Electoral Commissioner to determine the appropriate time for the broadcasting of required particulars  without constraining it to immediately afterwards.  This could include immediately before the broadcast or during appropriate breaks.  The determination under subsection 321D(7) of the Electoral Act could include requirements relating to the timing of the announcing or televising of required particulars. 

The new provision retains the methods for the broadcasting of required particulars by radio or television with two differences.  The term ‘ensure’ is used instead of ‘cause’ for consistency with the terminology of other like provisions to be included in the Electoral Act, the Referendum Act and other broadcasting legislation.  The omission of the exception in relation to the name of every speaker delivering an address or making a statement reflects that the new definition of required particulars does not include this requirement. 

174.            A note is also included at the end of subsection 79A(2) to alert the reader to the new deeming provision in subsection 76A(7) which is relevant in determining whether the ABC has announced or televised the required particulars in accordance with this Act.

175.            The item also inserts a subheading at the end of subsection 79A(2) and before subsection 79A(3) to make it clear that the subsection relates to keeping records by the ABC. 

Item 48 - Before subsection 79A(4)

176.            This item inserts a subheading before subsection 79A(4) to make it clear that the subsection sets out the meaning of “authorises”.

Item 49 - Before subsection 79A(5)

177.            This item inserts a subheading before subsection 79A(5) to make it clear that the subsection contains definitions for the purposes of section 79A.

Item 50 - Subsection 79A(5)

178.            This item inserts a definition of “disclosure entity” and provides that it has the meaning given by section 321B of the Electoral Act, or paragraph (e) of the definition of “disclosure entity” in section 110A of the Referendum Act.

179.            It also inserts a definition of “relevant town or city”, which mirrors the definition used in the Electoral and Referendum Acts, but applies it to “political matter”, consistent with other provisions in the ABC Act. Thus, “relevant town or city” in relation to an entity that authorised the communication of political matter means different things depending on the situation of the entity. For an entity with a principal office, “relevant town or city” means the town or city in which the office is located. For an entity without a principal office, but with premises, “relevant town or city” means the town or city in which the premises are located. For an entity with neither a principal office nor premises, “relevant town or city” means the town or city in which the natural person who was responsible for giving effect to the authorisation lives.

180.            These amendments are required as a consequence of the new definition of “required particulars” which sets out different required particulars for a broadcast that was authorised by a “disclosure entity” and for a broadcast that was authorised by an entity that is not a “disclosure entity”.

181.            Relying on the definition of “disclosure entity” and adapting the definition of “relevant town or city” that is included in the Electoral Act will ensure that the terms are defined consistently across relevant legislation.  The reference to the Referendum Act is required to pick up the extra entity that is a disclosure entity under the definition in that Act due to it being a referendum-specific disclosure entity.

Item 51 - Subsection 79A(5) (definition of required particulars )

182.            This item repeals the current definition of “required particulars” and provides that “required particulars” now has the meaning given in new subsection (6).

Item 52 - At the end of section 79A

183.            This item inserts a new definition that will align with the notification requirements in new subsection 321D(5) of the Electoral Act and new subsection 110C(5) of the Referendum Act, as well as the definition of “required particulars” in other broadcasting legislation.   

184.            Under the ABC Act, the ABC is required to broadcast required particulars when broadcasting a political matter at the request of another person.  New section 321D of the Electoral Act will include a requirement for a notifying entity who communicates an electoral matter to a person to ensure particulars to be notified.  New section 110C of the Referendum Act will insert a similar requirement in relation to a notifying entity who communicates a referendum matter to a person.   

185.            An electoral or referendum matter under the Electoral Act or the Referendum Act will also be a political matter for the purposes of the ABC Act. As such the required particulars for the broadcast of ‘political matter’ must be consistent with the ‘required particulars’ for the communication of electoral matter in the Electoral Act to ensure consistency.  

186.            Aligning the minimum requirements in this way will also avoid a situation where an electoral or referendum matter that is broadcast by the ABC requires, in the same broadcast, different particulars to be notified under, for example, the Electoral Act or the Referendum Act, to those required to be broadcast under the ABC Act.

187.            The new definition of “required particulars” sets out different required particulars in a table at the end of subsection 79A(6). The “required particulars” differ depending on whether or not the political matter was authorised by: a disclosure entity; and a natural person.

188.            If the broadcast was authorised by a disclosure entity that is not a natural person, item 1 in the table accompanying the new definition provides that the required particulars are:

·          the name of the entity as set out in the most recent return given in relation to the entity under Part XX of the Electoral Act, where a return has been provided;

·          the relevant town or city of the entity, as defined in new subsection 79A(5); and

·          the name of the natural person responsible for giving effect to the authorisation.

189.            If the broadcast was authorised by a disclosure entity that is a natural person, item 2 in the table accompanying the new definition provides that the required particulars are:

·          the name of the person who authorised the broadcast of the political matter; and

·          the town or city in which the person lives.

190.            If the broadcast was authorised by an entity that is neither a disclosure entity nor a natural person, item 3 in the table accompanying the new definition provides that the required particulars are:

·          the name of the entity that authorised the broadcast of the political matter; and

·          the relevant town or city, as defined in new subsection 79A(5).

191.            If the broadcast was authorised by an entity that is a natural person who is not a disclosure entity, item 4 in the table accompanying the new definition provides that the required particulars are:

·          the name of the entity that authorised the broadcast of the political matter; and

·          the town or city in which the person lives.

192.            Paragraph 79A(6)(b) provides that additional particulars can be prescribed in a legislative instrument made under subsection 321D(7) of the Electoral Act. The power to determine additional required particulars is to sit with the Electoral Commissioner under new subsection 321D(7) of the Electoral Act to ensure that the required particulars that are to be broadcast are consistent across legislation.  When making a determination under new subsection 321D(7), section 17 of the Legislation Act requires the Electoral Commissioner to consult with relevant stakeholders, including the ABC to ensure the content of the instrument is appropriate. 

193.            This item also inserts new subsection 79A(7).

194.            New subsection 79A(7) provides that the ABC is taken to have ensured that the required particulars to have been announced in relation to a political matter that it broadcasts in particular circumstances.  Those circumstances are that:

·          the particulars that were announced in relation to the matter for the purposes of this Act;

·          those particulars purported to be the particulars referred to in items 3 or 4 of the table accompanying the definition of required particulars in subsection 6; and

·          the ABC took steps which resulted in it being reasonable for it to rely on the particulars that were provided for the purposes of this Act.

195.            This provision is intended to protect the ABC where, for example, the person requesting the broadcast advises the ABC that it is not authorised by a disclosure entity and asserts the required particulars to be notified are those set out in items 3 or 4 of the table accompanying the definition of required particulars, and, after taking reasonable steps, the ABC relies on that representation and so broadcasts. 

196.            This deeming provision is intended to make clear that the obligation to determine whether the authorising person or body was a disclosure entity rests on the person requesting the broadcast and the broadcaster is only expected to take reasonable steps to satisfy itself that the authorising person does not meet the definition of a disclosure entity.  The requirement for reasonable steps to be taken before relying on the information provided reflects the responsibility on the ABC given its influential role in public debate.

197.            Under subsection 79A(7), there is a non-exhaustive note that includes an example of reasonable steps that may be taken by the ABC.  The ABC may have taken reasonable steps if they have notified the person wanting to broadcast political matter that the notification requirements differ depending on whether the person is a disclosure entity or not, and sought a verification from that person that the authorising body was not a disclosure  entity.  It would also be reasonable for the broadcaster to check the Australian Electoral Commission’s website for publicly available information on disclosure entities, including for the name of the entity.



Broadcasting Services Act 1992

Item 53 - Clause 1 of Schedule 2

198.            This item inserts “(1)” before “In this Schedule” to allow for additional subclauses to be inserted under clause 1 of schedule 2.

Item 54 - Clause 1 of Schedule 2

199.            This item inserts a definition of “disclosure entity” and provides that it has the meaning given by section 321B of the Electoral Act, or paragraph (e) of the definition of “disclosure entity” in section 110A of the Referendum Act.

200.            It also inserts a definition of “relevant town or city”, which mirrors the definition used in the Electoral and Referendum Acts, but applies it to “political matter”, consistent with other provisions in the Broadcasting Act. Thus, “relevant town or city” in relation to an entity that authorised the communication of political matter means different things depending on the situation of the entity. For an entity with a principal office, “relevant town or city” means the town or city in which the office is located. For an entity without a principal office, but with premises, “relevant town or city” means the town or city in which the premises are located. For an entity with neither a principal office nor premises, “relevant town or city” means the town or city in which the natural person who was responsible for giving effect to the authorisation lives.

201.            These amendments are required as a consequence of the new definition of “required particulars” which sets out different required particulars for a broadcast that was authorised by a “disclosure entity” and for a broadcast that was authorised by an entity that is not a “disclosure entity”.

202.            Relying on the definition of “disclosure entity” and adapting the definition of “relevant town or city” that is included in the Electoral Act will ensure that the terms are defined consistently across relevant legislation.  The reference to the Referendum Act is required to pick up the extra entity that is a disclosure entity under the definition in that Act due to it being a referendum-specific disclosure entity.

Item 55 - Clause 1 of Schedule 2 (definition of required particulars )

203.            This item repeals the current definition of “required particulars” and provides that “required particulars” now has the meaning given in new subclause (2).

Item 56 - At the end of clause 1 of Schedule 2

204.             This item inserts a new definition that will align with the notification requirements in new subsection 321D(5) of the Electoral Act and new subsection 110C(5) of the Referendum Act, as well as the definition of “required particulars” in other broadcasting legislation.  

205.            Under the Broadcasting Services Act, one of the standard conditions for a broadcasting license is that broadcasters are required to broadcast required particulars when broadcasting a political matter at the request of another person in accordance with clause 4 of Schedule 2 to the Broadcasting Services Act.  Subclause 4(1) of that Schedule sets out the broadcasters that are subject to this standard condition.

206.            New section 321D of the Electoral Act will include a requirement for a notifying entity who communicates an electoral matter to a person to ensure particulars to be notified.  New section 110C of the Referendum Act will insert a similar requirement in relation to a notifying entity who communications a referendum matter to a person. 

207.            An electoral or referendum matter under the Electoral Act or the Referendum Act will also be a political matter for the purposes of the Broadcasting Services Act. As such, the required particulars for the broadcast of ‘political matter’ must be consistent with the ‘required particulars’ for the communication of electoral matter in the Electoral Act to ensure consistency.

208.            Aligning the minimum requirements in this way will also avoid a situation where an electoral or referendum matter that is broadcast by a broadcaster set out in subclause 4(1) of the Broadcasting Services Act requires, in the same broadcast, different particulars to be notified under the Electoral Act or the Referendum Act, to those required to be broadcast under the Broadcasting Services Act.

209.            The new definition of “required particulars” sets out different required particulars in a table at the end of subclause 1(2). The “required particulars” differ depending on whether or not the political matter was authorised by: a disclosure entity; and a natural person.

210.            If the broadcast was authorised by a disclosure entity that is not a natural person, item 1 in the table accompanying the new definition provides that the required particulars are:

·          the name of the entity as set out in the most recent return given in relation to the entity under Part XX of the Electoral Act, where a return has been provided;

·          the relevant town or city of the entity, as defined in new clause 1 of schedule 2; and

·          the name of the natural person responsible for giving effect to the authorisation.

211.            If the broadcast was authorised by a disclosure entity that is a natural person, item 2 in the table accompanying the new definition provides that the required particulars are:

·          the name of the person who authorised the broadcast of the political matter; and

·          the town or city in which the person lives.

212.            If the broadcast was authorised by an entity that is neither a disclosure entity nor a natural person, item 3 in the table accompanying the new definition provides that the required particulars are:

·          the name of the entity that authorised the broadcast of the political matter; and

·          the relevant town or city, as defined in new clause 1 of schedule 2.

213.            If the broadcast was authorised by an entity that is a natural person who is not a disclosure entity, item 4 in the table accompanying the new definition provides that the required particulars are:

·          the name of the entity that authorised the broadcast of the political matter; and

·          the town or city in which the person lives.

214.            Subclause 1(2)(b) of schedule 2 provides that additional particulars can be prescribed in a legislative instrument made under subsection 321D(7) of the Electoral Act. The power to determine additional required particulars is to sit with the Electoral Commissioner under new subsection 321D(7) of the Electoral Act to ensure that the required particulars that are to be broadcast are consistent across legislation.  When making a determination under new subsection 321D(7), section 17 of the Legislation Act requires the Electoral Commissioner to consult with relevant stakeholders, including the ACMA to ensure the content of the instrument is appropriate. 

Item 57 - Before subclause 4(1) of Schedule 2

215.            Consistent with contemporary drafting practice this item inserts a subheading before subclause 4(1) of Schedule 2 to make it clear that the subclause sets out the meaning of “broadcaster”.

Item 58 - Subclause 4(2) of Schedule 2

216.            This item repeals current subclause 4(2) of Schedule 2 which requires a broadcaster to cause the required particulars in relation to a political matter that it has broadcast at the request of another person to be announced, immediately afterwards, in a form approved in writing by the ACMA.

217.            In its place, the item inserts a new subclause 4(2) that requires a broadcaster who broadcasts political matter at the request of another person to ensure the required particulars to be broadcast as required by any instrument made under new subsection 321D(7) of the Electoral Act.

218.            The amendment is intended to provide flexibility for the Electoral Commissioner to determine the appropriate time for the broadcasting of required particulars.  This could include immediately before the broadcast or during appropriate breaks.  The determination under subsection 321D(7) of the Electoral Act could include requirements relating to the timing of the broadcast of required particulars.

219.            The term ‘ensure’ is used instead of ‘cause’ for consistency with the terminology of other like provisions to be included in the Electoral Act, the Referendum Act and other broadcasting legislation. 

220.            A note is also included at the end of subclause 4(2) of Schedule 2 to alert the reader to the new deeming provision in subclause 4(5) which is relevant in determining whether the broadcaster has broadcast the required particulars in accordance with this Act.

221.            The item also inserts a subheading at the end of subclause 4(2) of Schedule 2 and before subclause 4(3) to make it clear that the subclause relates to keeping records by broadcasters. 

Item 59 - Before subclause 4(4) of Schedule 2

222.            This item inserts a subheading before subclause 4(4) of Schedule 2 to make it clear that the subsection sets out the meaning of “authorises”.

Item 60 - At the end of clause 4 of Schedule 2

223.            This item inserts a new subclause 4(5) of Schedule 2 to the Broadcasting Services Act.

224.            New subclause 4(5) provides that a broadcaster is taken to have ensured the required particulars to have been announced in relation to a political matter that it broadcasts in particular circumstances.  Those circumstances are that:

·          the particulars that were announced in relation to the matter for the purposes of the Broadcasting Services Act;

·          those particulars purported to be the particulars referred to in items 3 or 4 of the table in subclause 1(2); and

·          the broadcaster took steps which resulted in it being reasonable for it to rely on the particulars that were provided for the purposes of this Act.

225.            This provision is intended to protect the broadcaster where, for example, the person requesting the broadcast advises the broadcaster that it was not authorised by a disclosure entity and asserts the required particulars to be notified are those set out in paragraph (b) of the definition of “required particulars”, and, after taking reasonable steps, the broadcaster relies on that representation and so broadcasts. 

226.            This deeming provision is intended to make clear that the obligation to determine whether the authorising person or body was a disclosure entity rests on the person requesting the broadcast and the broadcaster is only expected to take reasonable steps to satisfy itself that the authorising person does not meet the definition of a disclosure entity.  The requirement for reasonable steps to be taken before relying on the information provided reflects the responsibility on broadcasters given their influential role in public debate.

227.            Under subclause 4(5), there is a non-exhaustive note that includes an example of reasonable steps that may be taken by the broadcaster.  The broadcaster may have taken reasonable steps if they have notified the person wanting to broadcast political matter that the notification requirements differ depending on whether the person is a disclosure entity or not, and sought a verification from that person that the authorising body was  not a disclosure entity.  It would also be reasonable for the broadcaster to check the Australian Electoral Commission’s website for publicly available information on disclosure entities, including for the name of the entity.



Parliamentary Proceedings Broadcasting Act 1946

Item 61 - Section 16 (heading)

228.            This item repeals the current heading and inserts a new heading before section 16 of the Parliamentary Proceedings Broadcasting Act 1946 of ‘Broadcasting obligations inapplicable’.

229.            This amendment reflects that broadcasting obligations are no longer confined to the ABC Act, the Broadcasting Services Act and the SBS Act, but that obligations are now included in the Electoral Act and the Referendum Act.

Item 62 - Section 16

230.            This item inserts a reference to the new section 321D of the Electoral Act and new section 110C of the Referendum Act which contain obligations for an authorising entity to ensure particulars to be notified when they are communicating to a person an electoral or referendum matter. 

231.            The effect of this amendment is that the ABC is not required to comply with the new section 321D of the Electoral Act or new section 110C of the Referendum Act when broadcasting, or re-broadcasting any proceedings of either House of Parliament or of a joint sitting.



Special Broadcasting Service Act 1991

Item 63 - Subsection 70A(2)

232.            This item repeals the current subsection 70A(2) of the SBS Act and substitutes a new subsection. 

233.            The current framework provides that if the Special Broadcasting Service Corporation (the SBS) broadcasts a political matter, it must cause the required particulars to be announced (if broadcast by radio) or televised immediately after the broadcast.  It also sets out the method that the required particulars are to be broadcast based on whether the matter was broadcast by radio or televised.  If a matter is broadcast by radio, the required particulars are to be announced.  If a matter is televised, the required particulars (with the exception of the name of every speaker) must be announced and transmitted in the form of images of words. 

234.            The new subsection is similar to the current framework in that it requires the SBS to ensure that required particulars are to be announced or televised, and sets out the method in which they are to be announced or televised.  However, there are some differences to ensure consistency with similar provisions that are included in the Electoral Act, the Referendum Act and other broadcasting legislation.  

235.            The new subsection includes a subheading before subsection 70A(2) to make it clear that the subsection relates to announcing required particulars.

236.            The new provision does not include the legislative requirement to announce or televise the required particulars immediately after the broadcast.  It will instead require that, where the SBS broadcasts political matter at the request of another person, the SBS must ensure that the required particulars are to be broadcast in accordance with any requirement determined under subsection 321D(7) of the Electoral Act.  When making the legislative instrument under subsection 321D(7), the Electoral Commissioner is required to consult with relevant stakeholders, including the SBS.  

237.            The omission of the requirement to broadcast required particulars immediately after the political matter is intended to allow for flexibility for the Electoral Commissioner to determine the appropriate time for the broadcasting of required particulars without constraining it to immediately afterwards.  This could include immediately before the broadcast or during appropriate breaks.  The determination under subsection 321D(7) of the Electoral Act could include requirements relating to the timing of the announcing or televising of required particulars.

238.            The new provision retains the methods for the broadcasting of required particulars by radio or television with two differences.  The term ‘ensure’ is used instead of ‘cause’ for consistency with the terminology of other like provisions to be included in the Electoral Act, the Referendum Act and other broadcasting legislation.  The omission of the exception in relation to the name of every speaker delivering an address or making a statement reflects that the new definition of required particulars does not include this requirement. 

239.            A note is also included at the end of subsection 70A(2) to alert the reader to the new deeming provision in subsection 70A(6) which is relevant in determining whether the SBS has announced or televised the required particulars in accordance with this Act.

240.            The item also inserts a subheading at the end of subsection 70A(2) and before subsection 70A(3) to make it clear that the subsection relates to keeping records by the SBS. 

Item 64 - Before subsection 70A(4)

241.            This item inserts a subheading before subsection 70A(4) to make it clear that the subsection sets out the meaning of “authorises”.

Item 65 - Before subsection 70A(5)

242.            This item inserts a subheading before subsection 70A(5) to make it clear that the subsection contains definitions for the purposes of section 70A.

Item 66 - Subsection 70A(5)

243.            This item inserts a definition of “disclosure entity” and provides that it has the meaning given by section 321B of the Electoral Act, or paragraph (e) of the definition of “disclosure entity” in section 110A of the Referendum Act.

244.             It also inserts a definition of “relevant town or city”, which mirrors the definition used in the Electoral and Referendum Acts, but applies it to “political matter”, consistent with other provisions in the SBS Act. Thus, “relevant town or city” in relation to an entity that authorised the communication of political matter means different things depending on the situation of the entity. For an entity with a principal office, “relevant town or city” means the town or city in which the office is located. For an entity without a principal office, but with premises, “relevant town or city” means the town or city in which the premises are located. For an entity with neither a principal office nor premises, “relevant town or city” means the town or city in which the natural person who was responsible for giving effect to the authorisation lives.

245.            These amendments are required as a consequence of the new definition of “required particulars” which sets out different required particulars for a broadcast that was authorised by a “disclosure entity” and for a broadcast that was authorised by an entity that is not a “disclosure entity”.

246.            Relying on the definition of “disclosure entity” and adapting the definition of “relevant town or city” that is included in the Electoral Act will ensure that the terms are defined consistently across relevant legislation.  The reference to the Referendum Act is required to pick up the extra entity that is a disclosure entity under the definition in that Act due to it being a referendum-specific disclosure entity.



Item 67 - Subsection 70A(5) (definition of required particulars )

247.            This item repeals the current definition of “required particulars” and provides that “required particulars” now has the meaning given in new subsection (6).

Item 68 - At the end of section 70A

248.            This item inserts a new definition that will align with the notification requirements in new subsection 321D(5) of the Electoral Act and new subsection 110C(5) of the Referendum Act, as well as the definition of “required particulars” in other broadcasting legislation.   

249.            Under the SBS Act, the SBS is required to broadcast required particulars when broadcasting a political matter at the request of another person.  New section 321D of the Electoral Act will include a requirement for a notifying entity who communicates an electoral matter to a person to ensure particulars to be notified.  New section 110C of the Referendum Act will insert a similar requirement in relation to a notifying entity who communicates a referendum matter to a person.   

250.            An electoral or referendum matter under the Electoral Act or the Referendum Act will also be a political matter for the purposes of the SBS Act. As such the required particulars for the broadcast of ‘political matter’ must be consistent with the ‘required particulars’ for the communication of electoral matter in the Electoral Act to ensure consistency.   

251.            Aligning the minimum requirements in this way will also avoid a situation where an electoral or referendum matter that is broadcast by the SBS requires, in the same broadcast, different particulars to be notified under, for example, the Electoral Act or the Referendum Act, to those required to be broadcast under the SBS Act.

252.            If the broadcast was authorised by a disclosure entity that is not a natural person, item 1 in the table accompanying the new definition provides that the required particulars are:

·          the name of the entity as set out in the most recent return given in relation to the entity under Part XX of the Electoral Act, where a return has been provided;

·          the relevant town or city of the entity, as defined in new subsection 70A(5); and

·          the name of the natural person responsible for giving effect to the authorisation.

253.            If the broadcast was authorised by a disclosure entity that is a natural person, item 2 in the table accompanying the new definition provides that the required particulars are:

·          the name of the person who authorised the broadcast of the political matter; and

·          the town or city in which the person lives.

254.            If the broadcast was authorised by an entity that is neither a disclosure entity nor a natural person, item 3 in the table accompanying the new definition provides that the required particulars are:

·          the name of the entity that authorised the broadcast of the political matter; and

·          the relevant town or city, as defined in new subsection 70A(5).

255.            If the broadcast was authorised by an entity that is a natural person who is not a disclosure entity, item 4 in the table accompanying the new definition provides that the required particulars are:

·          the name of the entity that authorised the broadcast of the political matter; and

·          the town or city in which the person lives.

256.            Paragraph 70A(6)(b) provides that additional particulars can be prescribed in a legislative instrument made under subsection 321D(7) of the Electoral Act. The power to determine additional required particulars is to sit with the Electoral Commissioner under new subsection 321D(7) of the Electoral Act to ensure that the required particulars that are to be broadcast are consistent across legislation.  When making a determination under new subsection 321D(7), section 17 of the Legislation Act requires the Electoral Commissioner to consult with relevant stakeholders, including the SBS, to ensure the content of the instrument is appropriate. 

257.            New subsection 70A(7) provides that the SBS is taken to have ensured that the required particulars to have been announced in relation to a political matter that it broadcasts in particular circumstances.  Those circumstances are that:

·          the particulars that were announced in relation to the matter for the purposes of this Act;

·          those particulars purported to be the particulars referred to in items 3 or 4 of the table accompanying the definition of required particulars in subsection 6; and

·          the SBS took steps which resulted in it being reasonable for it to rely on the particulars that were provided for the purposes of this Act.

258.            This provision is intended to protect the SBS where, for example, the person requesting the broadcast advises the SBS that it is not authorised by a disclosure entity and asserts the required particulars to be notified are those set out in paragraph (b) of the definition of required particulars, and, after taking reasonable steps, the SBS relies on that representation and so broadcasts. 

259.            This deeming provision is intended to make clear that the obligation to determine whether the authorising person or body was a disclosure entity rests on the person requesting the broadcast and the broadcaster is only expected to take reasonable steps to satisfy itself that the authorising person does not meet the definition of a disclosure entity.  The requirement for reasonable steps to be taken before relying on the information provided reflects the responsibility on the SBS given its influential role in public debate.

260.            Under subsection 70A(6), there is a non-exhaustive note that includes an example of reasonable steps that may be taken by the SBS.  The SBS may have taken reasonable steps if they have notified the person wanting to broadcast political matter that the notification requirements differ depending on whether the person is a disclosure entity or not, and sought a verification from that person that the authorising body was not a disclosure entity.  It would also be reasonable for the broadcaster to check the Australian Electoral Commission’s website for publicly available information on disclosure entities, including for the name of the entity.



Schedule 2 - Impersonating a Commonwealth body

 

Criminal Code Act 1995

 

Item 1 - Part 7.8 (heading) of the Criminal Code

261.            This item is a consequential amendment that repeals the current heading for Part 7.8 and replaces it with a new heading - ‘Causing harm to or obstructing Commonwealth public officials and impersonating Commonwealth public officials or bodies’.

Item 2 - At the end of Part 7.8 of the Criminal Code

262.            This item inserts a new Division 150 into Part 7.8 of the Criminal Code. Division 150 will contain new offences to criminalise false representations in relation to a Commonwealth body.

263.            New subsection 150.1(1) creates an offence where a person engages in conduct that results in, or is reasonably capable of resulting in, a false representation that the person is a Commonwealth body, or is acting on behalf of, or with the authority of, a Commonwealth body. The maximum penalty for this offence is two years’ imprisonment, which mirrors the penalty for the current basic offences of impersonating a Commonwealth public official in subsections 148.1(1) and (2) of the Criminal Code.

264.            Pursuant to this offence, a person must be reckless as to whether their conduct will result in, or is reasonably capable of resulting in, a false representation. This threshold of recklessness applies to both the result (i.e., a representation that the person is a Commonwealth body, or is acting on behalf of, or with the authority of, a Commonwealth body) and the circumstance (i.e., the person in fact not being the Commonwealth body, or acting on behalf of, or with the authority of, the Commonwealth body).

265.            This threshold captures conduct where a person does not necessarily intend to create the relevant representation, or does not necessarily believe the circumstance to be false, but where they are aware that there is a substantial risk that such a representation will occur, or that the circumstance is false, and it is unjustifiable for them to take that risk. This threshold is necessary to ensure the offence covers false representations that, whilst not intentional, are equally capable of undermining public confidence in the integrity and authority of the Australian Government and are made in circumstances where the accused is aware of a substantial risk of misrepresentation. These fault elements for result and circumstance mirror the elements for the current offences of impersonating a Commonwealth public official in section 148.1 of the Criminal Code. 

266.            This offence applies to a ‘person’, which includes both natural and legal persons. This offence relies on the definition of a ‘Commonwealth body’, which is set out in new subsection 150.1(7). 

267.            For the purposes of this offence, relevant conduct may include, but is not limited to:

·          writing of a letter on the letterhead (or purported letterhead) of a Commonwealth body

·          sending an electronic communication (including an email or text message) imputed to be from or on behalf of a Commonwealth body

·          taking out an advertisement in the name of a Commonwealth body, or

·          issuing of a publication in the name of a Commonwealth body.

268.            New subsection 150.1(2) creates an aggravated offence where a person falsely represents that the person is a Commonwealth body, or acts on behalf of, or with the authority of, a Commonwealth body, with the intention of obtaining a gain, causing a loss, or influencing the exercise of a public duty or function. The maximum penalty for this offence is five years’ imprisonment, which mirrors the penalty for the current aggravated offences of impersonating a Commonwealth public official in subsections 148.1(3) and 148.2(3) of the Criminal Code.

269.            As with the primary offence, a person must be reckless as to whether their conduct will result in, or is reasonably capable of resulting in, a false representation. Again, this threshold of recklessness applies to both the ‘result’ (i.e., a representation that the person is a Commonwealth body, or is acting on behalf of, or with the authority of, a Commonwealth body) and the ‘circumstance’ (i.e., the person in fact not being the Commonwealth body, or acting on behalf of, or with the authority of, the Commonwealth body). The rationale for applying recklessness to these elements of the aggravated offence is the same as is stated in respect of the primary offence.

270.            The elements of the aggravated offence mirror those of the current aggravated offences of impersonating a Commonwealth public official in subsections 148.1(3) and 148.2(3).

271.            The terms ‘obtaining’, ‘gain’, and ‘loss’ are defined in section 130.1 of the Criminal Code.

272.            The phrase ‘influencing the exercise of a public duty or function’ in sub-paragraph 150.1(2)(c)(iii) is not intended to incorporate the definition of ‘duty’ in section 130.1. This is because the phrase ‘influencing the exercise of a public duty or function’ in sub-paragraph 150.1(2)(c)(iii) is not limited on its face to being ‘in relation to a person who is a Commonwealth public official’ or ‘in relation to a person who is a public official’. Rather, the phrase ‘public duty or function’ should be interpreted according to its ordinary and natural meaning.

273.            Consistent with its ordinary and natural meaning, the phrase ‘public duty or function’ is not intended to apply to so-called ‘civic duties’ of private citizens, such as voting.

274.            This offence applies to a ‘person’, which includes both natural and legal persons. This offence relies on the definition of a ‘Commonwealth body’ in new subsection 150.1(7). 

275.            For the purposes of these offences, relevant conduct may include, but is not limited to:

·          writing of a letter on the letterhead (or purported letterhead) of a Commonwealth body

·          sending an electronic communication (including an email or text message) imputed to be from or on behalf of a Commonwealth body

·          taking out an advertisement in the name of a Commonwealth body, or

·          issuing of a publication in the name of a Commonwealth body.

276.            New subsection 150.1(3) provides that, for the purposes of new section 150.1, it is immaterial whether the Commonwealth body exists or is fictitious. Provided a person makes a false representation in relation to a Commonwealth body, it is not necessary that the specific body they purport to represent be actually in existence.

277.            For example, conduct amounting to a person falsely representing themselves to be, or to be acting on behalf of, or with the authority of, the fictional Commonwealth Department of Alcohol and Fisheries or Ministry of Internal Security, could be criminalised under the new offences in section 150.1.

278.            New subsection 150.1(4) provides that if the Commonwealth body is fictitious, the offences under subsections (1) and (2) do not apply unless a person would reasonably believe that the Commonwealth body exists.

279.            This provision is intended to ensure that the offences only apply in circumstances where the Commonwealth body referred to, although fictitious, is reasonably capable of being believed to be a real Commonwealth body. This provision is intended to exclude application of the offences where the fictional body referred to is clearly not capable of being a real Commonwealth body.

280.            For example, the offences would not apply if a person falsely represented themselves to be, or to be acting on behalf of, or with the authority of, the fictional Ministry of Silly Walks, the Australian Government Hot Dog Authority or the Commonwealth Fund for Jane’s New Car, on the basis that a reasonable person would not believe such Commonwealth bodies exist.

281.            However, the offences will apply to conduct amounting to falsely representing oneself to be, or to be acting on behalf of, or with the authority of, a fictitious Commonwealth body where a person would reasonably believe such a body exists, for example the Commonwealth Department of Alcohol and Fisheries or the Ministry of Internal Security.

282.            New subsection 150.1(5) provides that new section 150.1 does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication. This section is not intended to limit the operation of section 15A of the Acts Interpretation Act 1901.

283.            New subsection 150.1(6) applies extended geographical jurisdiction (category C) to the offences created by new section 150.1. This means that offences relating to the impersonation of a Commonwealth body will apply whether or not the conduct or the result of the conduct constituting the alleged offence occurs in Australia. However, a defence may be available if there is no equivalent offence under the law of a foreign country where the conduct occurs. This defence does not apply if the person charged is of Australian nationality.

284.            This extension of geographical jurisdiction is consistent with the approach taken under existing offences of impersonating a Commonwealth public official in section 148.1 of the Criminal Code.

285.            New subsection 150.1(7) inserts a new definition of ‘Commonwealth body’ that applies to the offences under new section 150.1. This item also introduces a new definition of ‘conduct’ that applies to the offences under section 150.1.

286.            The new subsection provides that a ‘Commonwealth body’ means a Commonwealth entity; or a Commonwealth company within the meaning of the Public Governance, Performance and Accountability Act 2013 ; or a service, benefit, program or facility provided by or on behalf of the Commonwealth.

287.            According to the Dictionary to the Criminal Code, a Commonwealth entity means the Commonwealth and a Commonwealth authority, which includes a body established by or under a law of the Commonwealth (with certain exceptions specified in the definition). ‘Commonwealth’ means all parts of the Commonwealth, including departments of state and other non-corporate Commonwealth entities.

288.            A Commonwealth company within the meaning of the Public Governance, Performance and Accountability Act 2013 means a Corporations Act 2001 company that the Commonwealth controls. It does not include subsidiary companies. Some examples of a Commonwealth company are NBN Co Limited and Aboriginal Hostels Limited.

289.            Paragraph 150.1(7)(c) is intended to be interpreted broadly as any service, benefit, program or facility for some or all members of the public that is provided by the Commonwealth, whether under a law of the Commonwealth or otherwise. The terms ‘service’, ‘benefit’, ‘program’, or ‘facility’ are intended to have their ordinary and natural meaning. Some examples of a Commonwealth service are Centrelink and Medicare.

290.            This item also stipulates that, for the purposes of new section 150.1, the term ‘conduct’ does not include conduct engaged in solely for genuine satirical, academic or artistic purposes.