2019-2020-2021-2022

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

ELECTORAL LEGISLATION AMENDMENT (AUTHORISATIONS) BILL 2022

                                                                                                               

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of Special Minister of State,
the Hon Ben Morton MP)

 

 

 

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
THE SENATE TO THE BILL AS INTRODUCED

The following abbreviations and acronyms are used throughout this Revised Explanatory Memorandum:

Abbreviation	Definition
ABC Act	Australian Broadcasting Corporation Act 1983
AEC	Australian Electoral Commission
Bill	Electoral Legislation Amendment (Authorisations) Bill 2022
Broadcasting Services Act	Broadcasting Services Act 1992
Electoral Act	Commonwealth Electoral Act 1918
Item	Refers to an item in the Bill
ICCPR	International Covenant on Civil and Political Rights
Referendum Act	Referendum (Machinery Provisions) Act 1984
SBS Act	Special Broadcasting Service Act 1991

 

 

ELECTORAL LEGISLATION AMENDMENT (AUTHORISATIONS) BILL 2022

GENERAL OUTLINE

The Electoral Legislation Amendment (Authorisations) Bill 2022 (the Bill) will make minor and technical amendments to the Electoral Act, and consequential amendments to other referencing Acts to clarify the notifying particulars provisions for electoral authorisations.

The Bill:

·         minimises the risk of voter confusion by requiring registered political parties and disclosure entities to use their current registered name in authorisations for electoral communications;

·         allows registered political parties some additional flexibility in how they present their name in an electoral authorisation; and

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

These amendments will be replicated in the Broadcasting Services Act, the ABC Act and the SBS Act to provide consistency between broadcast and non-broadcast electoral communications.

This Bill builds on the Electoral and Other Legislation Amendment Act 2017, which amended authorisation requirements to make them clearer, more consistent and easier to navigate across relevant acts.

FINANCIAL IMPACT STATEMENT

The measures in the Bill are expected to be cost neutral. There are no significant costs or savings associated with the Bill.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill. The amendments have been assessed as 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 Legislation Amendment (Authorisations) Bill 2022

The 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.

Human rights implications

The impact of the Bill on the following rights of the ICCPR have been considered:

·         the right to political participation under Article 25.

 

1.    The Bill does not engage human rights as it makes only minor amendments to streamline the notifying requirements for the communication of electoral, referendum and political matters; for example, to allow the word ‘Incorporated’ to be omitted from the notifying particulars.

 

2.    These minor amendments will not limit Article 25 of the ICCPR – the right of citizens to take part in public affairs and elections – nor Article 19 – the right to freedom of opinion and expression – as the amendments will not detract from communication with voters.

 

3.    Further, some of these minor amendments will support greater clarity for voters about the identity of those communicating electoral, referendum or political matter as it will ensure the name a registered political party is required to use in notifying particulars (currently, the party’s name as included on its most recent return lodged with the AEC under Part XX of the Electoral Act) is the same as the party’s name as it is currently registered.

 

4.    Similarly, the Bill will require disclosure entities that are not registered political parties to use their name as entered on the Transparency Register in notifying particulars, rather than their most recent return.

 

5.    Therefore, 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.

 

 

 

ELECTORAL LEGISLATION AMENDMENT (AUTHORISATIONS) BILL 2022

NOTES ON CLAUSES

Clause 1 – Short title

1.             Clause 1 is a formal provision specifying the title of the Bill when enacted will be the Electoral Legislation Amendment (Authorisations) Act 2022 (the Act).

Clause 2 – Commencement

2.             Subclause 2(1) provides that the provisions in column 1 of the Commencement table commence at the time set out in column 2.

 

3.             Item 1 in the Commencement table provides that the whole of the Act commences on the day after the Act receives the Royal Assent.

 

4.             A Note is inserted below the Commencement table stating that the table relates only to the provisions of the Act as originally enacted and that the table will not be amended to deal with any later amendments of the Act.

 

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

Clause 3 – Schedules

6.             Clause 3 provides that legislation specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Act has effect according to its terms.

 

Schedule 1—Authorisation particulars

1.      Electoral communications, referendum communications, and political communications that are broadcast, need to be authorised. The framework for the authorisation of communications is as follows:

 

·           electoral communications, governed by the Electoral Act and the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021 (the Determination);

·           referendum communications, governed by the Referendum Act and the Determination; and

·           political communications that are broadcast by television and radio, governed by the ABC Act, the Broadcasting Services Act, the SBS Act and the Determination.

 

2.      The content of the authorisation ‘particulars’ will depend on the type of communication and who is responsible for the communication. The authorisation particulars that are required to be included in each type of communication are set out in each of the relevant Acts.

 

3.      Electoral or referendum matter under the Electoral Act or the Referendum Act is also ‘political matter’ for the purposes of the ABC Act, Broadcasting Services Act and SBS Act.

 

4.      To ensure consistency, the required particulars for the broadcast of political matter must replicate the ‘required particulars’ for the communication of electoral matter in the Electoral Act. For this reason, the Bill replicates the minor and technical changes to the requirements for notifying particulars in the authorisation of communications across electoral, referendum and broadcasting Acts.

 

5.      Aligning the requirements in this way will also avoid a situation where electoral or referendum matter that is broadcast by a broadcaster requires, in the same broadcast, different particulars to be notified under the Electoral Act or the Referendum Act.

Part 1—Electoral and referendum amendments

Commonwealth Electoral Act 1918

 

6.      Subsection 321D(5) of the Electoral Act specifies the particulars that the notifying entity must ensure are notified in the communication of “electoral matter”.

 

7.      Electoral matter is broadly defined in section 4AA of the Electoral Act (unamended by this Bill) to mean matter communicated or intended to be communicated for the dominant purpose of influencing the way electors vote in a federal election, including by promoting or opposing:

 

a)      a political entity, to the extent that the matter relates to a federal election; or

b)      a member of the House of Representatives or a Senator.

 

8.      Item 1 repeals paragraphs (a) of the table items 1 and 2, in the column headed “the following particulars are required …”, of subsection 321D(5) and substitutes “the particulars of the name of the entity required by subsection (5A);”.

 

9.      Item 2inserts new subsections 321D(5A) and (5B). These subsections provide entities that communicate electoral matter flexibility in how they present their name in authorisations for the purposes of items 1 and 2 of the table in subsection 321D(5) by allowing registered political parties the option to omit certain details, extraneous to the identification of a political party, from their required particulars.

 

10.  Currently, subsection 321D(5) of the Electoral Act requires registered political parties to use the name of the party included in their most recent return lodged with the AEC under Part XX in the notifying particulars of an electoral communication.

 

11.  New paragraph 321D(5A)(a) will amend this requirement to require registered political parties to use their registered name. This will minimise the potential risk of voter confusion by ensuring the name used in the notifying particulars for an electoral communication aligns with the party’s name as it appears on a ballot paper, not as it appears on a past return. This minor change ensures parties, when choosing to change their registered name with the AEC, are permitted to use their newly registered name for the purposes of authorising electoral matter.

 

12.  New subparagraphs 321D(5A)(a)(i)-(v) aim to streamline the notifying particulars and avoid duplication by allowing registered political parties to omit details of their registered name in their notifying particulars, subject to the following conditions:

 

i)       if the registered name includes both a word or phrase and its abbreviation—the abbreviation;

ii)     if the registered name includes “Incorporated” or an abbreviation of that word—that word or its abbreviation;

iii)   if the registered name includes “of Australia”—those words;

iv)   if the registered name ends with “Australia”—that word; and

v)      if the entity is a registered branch or division of a registered political party—the words indicating the name of the branch or division.

 

13.  The purpose of the provisions in subparagraph 321D(5A)(a)(v) that allow branch or division words in a registered political party’s name to be omitted are to allow the optional inclusion of words that differentiate the state or territory branch of a political party from the same party’s federal branch. This recognises that notifying entities must already specify their location as part of their notifying particulars, making references to a particular state or territory as part of the party’s registered name duplicative.

 

14.  New subsection 321D(5B) also amends the requirements in items 1 and 2 of the table in subsection 321D(5).  The new subsection allows a registered political party that is or has a registered branch or division to use the party’s registered abbreviation in notifying particulars, instead of the party’s registered name.

 

15.  A registered branch or division is a registered political party that is a component part of another political party registered on the Register of Political Parties, as per subsection 123(2) and section 130 of the Electoral Act. For the avoidance of doubt, a party registered with a State or Territory electoral commission is not a registered branch for the purposes of the Electoral Act. This means that a registered party does not meet the criteria of either being, or having a registered branch or division by referring to itself as the “federal” branch of a party, if there are not additional corresponding branches of that party on the Register of Political Parties.

 

16.  The allowance of the use of registered abbreviations recognises that state, territory, and federal branches (or divisions) that are related and federally registered are typically viewed by the Australian public as being the one cross-national party, and tend to share the same registered abbreviation. The amendment therefore allows such branches’ notifying particulars to align with the public’s understanding of the branches’ combined status.

17.  Subsections 321D(5A) and (5B) do not allow registered political parties to omit their entire name and abbreviation from the notifying particulars. The subsections establish the minimum details required for a name or abbreviation in an electoral authorisation.

 

18.  The Note inserted at Item 2 provides an example of the intended effect of new paragraph 321D(5A)(a) — ‘For example, under paragraph (a) the registered name “Quokka Party of Australia Inc.—NSW” may be notified as “Quokka Party”’. Although the name of this registered political party includes words that indicate the branch or division name, an abbreviation of the word “Incorporated” and the words “of Australia”, the notifying particulars of “Quokka Party” is the minimum requirement for the name of the party in the authorisation.

 

19.  As a further example, if the “Quokka Party of Australia Inc.—NSW” was a registered state branch of the “Quokka Party of Australia” (the registered federal branch), under new subsection 321D(5B) both parties will be able to use their respective registered abbreviation as their name in authorisations. Therefore, if both parties have registered the abbreviation “Quokka”, they are able to use “Quokka” as their name when authorising electoral communications.

 

20.  As a contrasting example, if the “Flightless Bird Party of Australia (FBP)” was a registered political party with no registered branches or divisions, the party will have  flexibility to omit details of their registered name as set out under new paragraphs 321D(5A)(i) and (iii) ­â€” and could authorise its electoral matter using the name “Flightless Bird Party” in its notifying particulars.

 

21.  The “Flightless Bird Party of Australia (FBP)” would not be able to use its registered abbreviation “F.B.P.” under new subsection 321D(5B), as it does not have separately registered branches or divisions, and is not a registered branch or division of a separately registered political party.

 

22.  The updates to the minimum requirements to notifying particulars do not preclude registered political parties from providing additional information that may assist electors in correctly discerning the party’s identity. Clarifying words such as “The” at the start of a party name or abbreviation, or including “Party” at the end where these words do not form part of a registered party name or abbreviation, does not affect the validity of an authorisation.

 

23.  By the same token, the inclusion of a party’s registered abbreviation at the end of its notifying particulars does not impact the validity of an authorisation. The previously mentioned illustration of “Quokka Party of Australia Inc.—NSW”, with the registered abbreviation of “Quokka”, would be example be able to authorise under the name “The Quokka Party (Quokka)” due to its inclusion of the minimum particulars, and its consistency with the function of authorisations being to assist electors in discerning the source of electoral matter.

 

24.  New paragraph 321D(5A)(b) will require disclosure entities that are not registered political parties (for example, significant third parties or associated entities) to use their name as entered on the Transparency Register, rather than their most recent return under Part XX. As with registered political parties, this minor change ensures disclosure entities are permitted to use the most up-to-date name for the entity for the purposes of authorising electoral matter.

 

25.  New paragraph 321D(5A)(c) requires any entities not covered by 321D(5A)(a) (registered political parties) or 321D(5A)(b) (disclosure entities that are not registered political parties) to use their name as included on their most recent return under Part XX, if such a return has been given.

 

26.  New paragraph 321D(5A)(d) provides that where the entity is not a registered political party or a disclosure entity, the entity is to use its name. 

 

27.  The policy rationale explained for these amendments also underpins the amendments to the Referendum Act, ABC Act, Broadcasting Services Act and SBS Act.

Referendum (Machinery Provisions) Act 1984

 

28.  The amendments to the Referendum Act will harmonise the notifying particulars provisions within this Act with amendments to the notifying particulars provisions of the Electoral Act (see Items 1–2 above).

 

29.  Item 3repeals paragraphs (a) of the table items 1 and 2, in the column headed “the following particulars are required …”, of subsection 110C(5) of the Referendum Act and substitutes “the particulars of the name of the entity required by subsection (5A);”.

 

30.  Item 4inserts new subsections 110C(5A) and (5B). This is consequential to the amendment to the Electoral Act at Item 2, and provides registered political parties flexibility in how they present their name (or, in certain circumstances, their abbreviation) in authorisations under items 1 and 2 of the table in subsection 110C(5). This is in addition to any other particulars determined under subsection 321D(7) of the Electoral Act for that paragraph.

 

31.  This also requires disclosure entities that are not registered political parties within the meaning of the Electoral Act to use their name as recorded on the Transparency Register established by the Electoral Commissioner pursuant to section 287N of the Electoral Act. Where the entity is not a political party or a disclosure entity, the entity is to use its name. 

 

32.  Item 4 also includes a Note providing an example of the effect of new subsection 110C(5A) – ‘For example, under paragraph (a) the registered name “Quokka Party of Australia Inc.—NSW” may be notified as “Quokka Party”.’.

 

33.  Item 5 provides that the amendments the Bill makes to the Electoral Act and Referendum Act will apply to electoral and referendum matter that is communicated on or after the commencement of this Schedule, which is the day after the Electoral Legislation Amendment (Authorisations) Act 2022 receives the Royal Assent. This will apply regardless of when the content of the communication was approved.

Part 2—Broadcasting amendments

Australian Broadcasting Corporation Act 1983

 

34.  The amendments to the ABC Act will harmonise the notifying particulars provisions within this Act with amendments to the notifying particulars provisions of the Electoral Act (see Items 1-2 above).

 

35.  Section 79A of the ABC Act regulates the broadcasting of political or controversial matter.

 

36.  Item 6 inserts in subsection 79A(5) a definition of “registered political party”. This term is defined to mean a political party that is registered under Part XI of the Electoral Act, and clarifies the application of new subsection 79A(6A).

 

37.  Item 7repeals paragraph (a) of the table item 1, in the column headed “the required particulars are the following …”, of subsection 79A(6) of the ABC Act and substitutes “the particulars of the name of the entity required by subsection (6A);”.

 

38.  Item 8inserts new subsections 79A(6A) and (6B). This is consequential to the amendment to the Electoral Act at Item 2, and provides registered political parties flexibility in how they present their name in authorisations for the purposes of item 1 in the table in subsection 79(6) by allowing registered political parties the option to omit certain limited details from (or, in certain circumstances, use their registered abbreviation in) their required particulars. This is in addition to any other particulars determined under subsection 321D(7) of the Electoral Act for that paragraph.

 

39.  This also requires disclosure entities to use their name as recorded on the Transparency Register established by the Electoral Commissioner pursuant to section 287N of the Electoral Act. Where the entity is not a political party or a disclosure entity, the entity is to use its name. 

 

40.  Item 8 also includes a Note providing an example of the effect of new subsection 79A(6A) – ‘For example, under paragraph (a) the registered name “Quokka Party of Australia Inc.—NSW” may be notified as “Quokka Party”.’.

Broadcasting Services Act 1992

 

41.  The amendments to the Broadcasting Act will harmonise the notifying particulars provisions within this Act with amendments to the notifying particulars provisions of the Electoral Act (see Items 1­­­â€“2 above). ­

 

42.  Item 9 inserts into subclause 1(1) of Schedule 2 a definition of “registered political party”. This term is defined to mean a political party that is registered under Part XI of the Electoral Act, and clarifies the application of new subclause (3) at the end of clause 1 of Schedule 2 (Item 11 below).

 

43.  Item 10 repeals paragraph (a) of the table item 1, in the column headed “the required particulars are the following …”, of subclause 1(2) of Schedule 2 and substitutes “the particulars of the name of the entity required by subclause (3);”.

 

44.  Item 11inserts new subclauses 1(3) and (4) of Schedule 2. This is consequential to the amendment to the Electoral Act at Item 2, and provides registered political parties flexibility in how they present their name in authorisations for the purposes of item 1 in the table in subclause 1(2) of Schedule 2 by allowing registered political parties the option to omit certain limited details from (or, in certain circumstances, use their registered abbreviation in) their required particulars. This is in addition to any other particulars determined under subsection 321D(7) of the Electoral Act for that paragraph.

 

45.  This also requires disclosure entities to use their name as recorded on the Transparency Register established by the Electoral Commissioner pursuant to section 287N of the Electoral Act. Where the entity is not a political party or a disclosure entity, the entity is to use its name. 

 

46.  Item 11 also includes a Note providing an example of the effect of new subclause (3) – ‘For example, under paragraph (a) the registered name “Quokka Party of Australia Inc.—NSW” may be notified as “Quokka Party”.’.

Special Broadcasting Service Act 1991

 

47.  The amendments to the SBS Act will harmonise the notifying particulars provisions within this Act with amendments to the notifying particulars provisions of the Electoral Act (see Items 1-2 above).

 

48.  Item 12inserts a definition of ‘registered political party’ in subsection 70A(5). This term is defined to mean a political party that is registered under Part XI of the Electoral Act, and clarifies the application of new subsection 70A(6A) (Item 14 below).

 

49.  Item 13repeals paragraph (a) of the table item 1, in the column headed “the required particulars are the following …”, of subsection 70A(6) of the SBS Act and substitutes “the particulars of the name of the entity required by subsection (6A);”.

 

50.  Item 14inserts new subsections 70A(6A) and (6B). This is consequential to the amendment to the Electoral Act at Item 2, and provides registered political parties flexibility in how they present their name in authorisations for the purposes of item 1 of the table in subsection (6) by allowing registered political parties the option to omit certain limited details from (or, in certain circumstances, use their registered abbreviation in) their required particulars. This is in addition to any other particulars determined under subsection 321D(7) of the Electoral Act for that paragraph.

 

51.  This also requires disclosure entities to use their name as recorded on the Transparency Register established by the Electoral Commissioner pursuant to section 287N of the Electoral Act. Where the entity is not a political party or a disclosure entity, the entity is to use its name. 

 

52.  Item 14 also includes a Note providing an example of the effect of new subsection 70A(6A) ­â€“ ‘For example, under paragraph (a) the registered name “Quokka Party of Australia Inc.—NSW” may be notified as “Quokka Party”.’

 

53.  Item 15 provides that the amendments the Bill makes to the ABC Act, Broadcasting Services Act and SBS Act will apply to all political matter broadcast on or after the commencement of this Schedule, which is the day after the Electoral Legislation Amendment (Authorisations) Act 2022 receives the Royal Assent. This will apply regardless of when the content of the communication was approved.