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Political Broadcasts and Political Disclosures Bill 1991



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House: House of Representatives

Portfolio: Transport and Communications

Purpose

To impose a ban on the broadcast of political advertisements; strengthen the rules relating to donations received by political parties, and to increase the public funding for each Senate vote.

Background

Political advertising and the declaration of donations were examined by the Joint Standing Committee on Electoral Matters in its report, Who pays the piper calls the tune, which dealt with the conduct of the 1987 Federal Election and the 1988 referendums. There was a majority report and three dissenting reports, which ranged from a total rejection of the majority view to dissent with one recommendation. Only the majority report will be dealt with here, as the proposals contained in the Bill go further than the majority recommendations in a number of regards. The various arguments regarding political advertising will be examined first, followed by a review of the disclosure rules and proposals.

Advertising

The report found that there was a possibility of corruption entering federal politics due to the high cost of political campaigns, particularly the costs associated with television advertisement. It was found that the various parties paid a total of $7.17 million for television advertisements during the 1987 election campaign, plus $1.99 million for radio advertisements, an increase of approximately 100% on the 1983 election. The report then concluded that `In order to meet these increases in advertising costs, major political parties have had to rely increasingly on donations from the corporate sector. Thus the democratic process has become increasingly dependent on who can raise the substantial funds needed to buy advertising on the electronic media - and in particular television.' 1 Linked to this increase in costs was the fear that people making large donations would expect some extra return for their donation, such as political or economic `favours'. The report commented `The Committee believes that, while there is no firm evidence of corrupt practices in Australian political fundraising, the substantial increase in cost pressures of campaigning creates the potential for such practices.' 2

A number of alternative means for reducing the cost pressure on political parties were then examined. The preferred option was for a system of allocation of free time by the commercial networks to be established, with a committee for the allocation of such time to be established on the lines of the U.K. example. The ABC is not bound to provide free time for election commercials but provides such time during election campaigns as part of its general public information role. It was also recommended that the free time come from that allowed for station promotions, so that the time available for commercial advertising would not be effected. The stations would, however, lose the additional revenue from the political advertisements. (Currently, it is the Australian Broadcasting Tribunals policy to allow an additional one minute per hour of commercial time during election periods, so that stations experience an increase in revenue during campaigns as they can run more advertisements.) The possibility of a complete ban on political advertising was examined, but rejected on three main grounds, the effects on freedom of speech (see below), the disadvantage caused to small groups which would not be able to put their views directly to the community, and the loss of revenue to the electronic media, particularly television. Other commentators have also suggested that a complete ban would greatly increase the power of the media, who may interpose their views between the group wishing to put their views forward and the public in news and similar broadcasts.

The government's decision to proceed with a ban on political advertising was announced by the Minister for Administrative Services on 19 March 1991 in a Media Release titled ` Government Will Not Tolerate Political Corruption'. The decision was based on the government not being prepared to continue with a situation that may lead to corruption. The report's recommendation for free time allocated amongst the various parties was rejected on a number of grounds, including:

* parties would still need to raise funds to cover production costs;

* there would be substantial administrative difficulties in relation to State elections;

* there was likely to be considerable disagreement from the smaller parties regarding allocations; and

* it would entrench the major parties at the expense of the small parties.

Some media commentators have linked the move for a total ban to allegations that the ALP is in a worse financial position than the Coalition following the 1990 election campaign and that this would be reflected in spending on the next election. It was proposed in the Minister's Media release that the ban would apply to all Federal, Sate and local government elections and would apply to third parties as well as the registered political parties.

As mentioned above, one of the main complaints regarding a total ban was the effect on freedom of speech. This argument is based on political, rather than purely legal, grounds. Unlike the USA, where the Constitution guarantees freedom of speech, there is no such direct right in Australia, through either the Constitution or legislation. Such a legislative right was proposed by the Australian Bill of Rights Bill 1985, but this Bill did not pass Parliament. Interestingly, much of the arguments that the proposed ban would breach civil rights are based on the argument that such a ban would breach the International Covenant on Civil and Political Rights, the Covenant which the Australian Bill of Rights Bill 1985 tried to give legislative effect to in Australia. As things stand, Australia has signed this document but is not bound by it in domestic law as it has not been adopted by legislation. The NSW Attorney-General was reported as stating that there was no possible legal action under the Covenant. 3

The Human Rights Commissioner has prepared a report on the proposal to ban political advertisements but this has not been made public. A motion for the report to be Tabled was debated in the Senate on 16 May 1991 but the motion was defeated, largely on the basis that the government has the right to determine which advice provided to it should be made public. The report, allegedly dated 20 March, was reported to have been seen by the Australian newspaper, which reports that the Commissioner concluded `It is clear, in my considered opinion, that the proposed ban .... is inconsistent with Australia's objectives under the International Covenant on Civil and Political Rights .... I therefore urge reconsideration of this proposal'. 4

While certain grounds for a Constitutional challenge have been ruled out, the NSW government has maintained that it will challenge the legislation, if enacted. The grounds for such a challenge have not been made clear, although the NSW Attorney-General has been reported as stating that Chapter V of the Constitution, which deals with the States, may be used. 5 The Commonwealth will rely on its power under paragraph 51(v) which gives the parliament power to make laws with respect to postal, telegraphic, telephonic, and like services. This has been interpreted to include broadcasting, and the Commonwealth currently regulates a number of matters relating to what broadcasters may show. The Commonwealth's power to enforce a ban on election advertising in the days immediately prior to an election was not overruled.

While the proposition of a total ban has been put forward, it appears to have little chance of passage. The Bill is opposed by the Coalition and the Democrats who announced their opposition to a total ban following a National Executive meeting on 14 April 1991. The Democrats called for the two measures contained in this Bill to be presented as separate legislation and for there to be negotiations with the government on amendments regarding electoral advertising.

Disclosure

The question of the disclosure of all donations to political parties was also discussed in the report Who pays the piper calls the tune. Currently, section 304 of the Commonwealth Electoral Act 1918 requires parties, candidates and their agents to disclose gifts received, but not if the gift was made on condition that it will not be used for election purposes. This has led to the distinction between accounts used for electoral purposes and those for the general administration of the party. The issue of accounts of donations that are not disclosed has bee highlighted during recent events in Western Australia. Another problem, as noted in the report, is that major parties have capital reserves and earn income on those reserves, so that of four major sources of income, gifts for elections, gifts for other purposes, public funding and interest earned, only two, gifts for elections and public funding, are disclosed. In submissions to the Joint Standing Committee on Electoral matters, the Australian Electoral Commission called for an extension of the disclosure rules to cover all gifts and this was recommended by the Committee. It was also recommended that the disclosure provisions relating to third parties, such as lobby groups which attempt to influence the way people vote without actually standing candidates, be tightened to require them to be registered as third parties and to fully disclose their sources of donations.

The general argument in favour of full disclosure is that it will enable the public to be aware of who made donations to parties and this can then be compared with any allegations of favourable treatment. As it could be put, if you know who is paying the piper you can see if they are calling the tune. The argument against disclosure is based on the perceived freedom for an individual to use their funds in the manner they desire and that this would be threatened by full public disclosure. For example, the administrative wing of the Liberal Party has claimed that people making donations to that party are concerned about possible intimidation or retribution from unions if their donations became public knowledge. 6 The position of the Leader of the Opposition was expressed in an interview on AM on 21 March 1991. The Leaders main concern was that disclosure be done on an `equitable basis' to prevent intimidation. 7

The Democrats have supported the principle of full disclosure and have requested that this Bill be divided to allow the rapid passage of the provisions relating to disclosure while negotiations continue on the question of electoral advertisements. It was reported that the Democrats would introduce their own Bill on disclosure if the government refused to place the two issues in separate legislation. 8

Main Provisions

Amendments to the Broadcasting Act 1942

Clause 4 will amend section 4 of this Act to amend and insert a number of definitions. The more interesting are the definitions for

* election period - generally the day on which the polling date is announced, or for the Legislative Council of Tasmania or the ACT Legislative Assembly, 33 days before polling date;

* exempt matter - warnings and messages associated with natural disasters, matters published by the appropriate electoral commission, advertisements relating to the sale of government goods and services that do not contain a political content, advertisements for tenders, and announcements relating to public inquiries or hearings.

* government authority - for the Commonwealth this will be a Department or authority that was established for a public purpose, while for a State or Territory it will be these bodies and a local government authority.

* policy launch - this is defined to be a spoken or written statement of all or any of the parties policies.

* political reference - material containing an express or implicit reference to: an election, the government or opposition, a member of Parliament, a political party, a candidate or an issue before the electors.

Proposed Part IIID, which will be inserted into the Act by clause 6, deals with political broadcasts. Proposed section 95A provides that a broadcaster is not, at any time, to broadcast a political advertisement, which is defined as an advertisement containing political matter. The latter term is subsequently defined to be matter intended to influence a voter at a Federal, State or local election or matter containing prescribed material. Exempt matters and public health matters are excluded. Prescribed material is given the same definition as `political reference' (see above).

Proposed section 95B contains provisions directed at the election period for Commonwealth elections. During such a period, a broadcaster is not to broadcast any matter, other than exempt matter, for the Commonwealth or a Commonwealth authority; political advertisements on behalf of State or Territory governments or authorities; or, subject to the policy launch exception (see below), a political advertisement on behalf of any other person. Proposed section 95C contains similar provisions in relation to Territory elections, with the difference that the prohibition on broadcasting any matter, other than exempt matter, will be on the Territory involved. Under proposed section 95D, which deals with State elections, the restriction will be on political advertisements.

Political launches are dealt with in proposed section 95E. Where a party has endorsed candidates, was represented in the previous Parliament and the chief executive officer of the party has so requested, a broadcaster may broadcast the launch once. Broadcasts are to be free and for a maximum of 30 minutes, and, where a launch is broadcast, the broadcaster must give every other party that is standing candidates and was represented in the previous Parliament, a reasonable opportunity to have their launch broadcast.

Amendments to the Commonwealth Electoral Act 1918

A new Division 5A will be inserted into Part XX of this Act by clause 15. Proposed section 314AA will require parties and their State branches to lodge annual returns declaring :

* all funds received and the organisations or people from which they were received;

* all amounts paid out and the organisations or people to which they were paid;

* outstanding debts and to whom these are owed.

The particulars of the person or organisation making the gift need not be disclosed where the amount of the gift, or the total value of the gifts if there is more than one, is less than $1000.

The amount of public funding in respect of votes received in a Senate election will be increased from 30c to 60c for each first preference vote. This will bring the funding for each first preference vote for Senate elections into line with those for the House of Representatives (clause 12 which will amend section 294 of this Act). Under section 321 this amount has been subject to annual indexation since 1984. Clause 20 will amend section 321 to provide that for payments made after the commencement of the Bill, the amount payable in respect of a Senate first preference vote will be taken to have been 60c since February 1984. This will make the current indexed contributions the same for both Houses.

Amendments to the Radiocommunications Act 1983

Section 25 of this Act will be amended to provide that proposed sections 95A, 95B, 95C and 95D of the Broadcasting Act 1942 are to be treated as conditions of transmitter licences.

References

1. Joint Standing Committee on Electoral matters, Inquiry into the conduct of the 1987 Federal Election and the 1988 Referendums, June 1989, p. 25.

2. Ibid., p. 88.

3. The Age, 1 April 1991.

4. The Australian, 17 may 1991.

5. The Age, 1 April 1991.

6. The Australian, 23 March 1991.

7. Transcript of Interview on AM, 21 March 1991.

8. Canberra Times, 15 April 1991.

Bills Digest Service 24 May 1991

Parliamentary Research Service

For further information, if required, contact the Law and Government Group on 06 2772439.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1991

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1991.