Some advice about election campaigns and the Electoral Act
When it comes to General Elections there are some specific legal requirements of anyone running an election campaign. The following are some questions that have been raised about the requirements of the Electoral Act for unions in the run up to the General Election.
- Does my organisation need to register as a promoter?
- Does all election advertising need a promoter statement?
- When does electoral advertising require written authorisation from political parties?
- As a registered promoter do we have to file a return of election expenses?
The Electroral Commission also produces a Third Party Handbook to further explain the rights and obligations of so-called "third party promoters" in the run-up to the General Election and Referendum.
Also, in the most recent amendment of the Electoral Act the role of the Commission was refined and they are now expressly required law to provide advisory opinons as to whether something is - in their opinion - an electoral advertisement. Visit Commission's website and download a form to request an advisory opinion.
And in general – whether we are talking about registration, promoter statements, authorisation or expenses – a good starting point might be that it is probably better to err on the side of caution .
Does my organisation need to register as a promoter?
The Electoral Act requires any group that intends to spend more than $12,000 on election advertising between 26 August and 25 November 2011 to register as a promoter with the Electoral Commission. (The same applies for spending on referendum advertising too.)
The definition of election advertising in the Act is very broad. Election advertising is defined as material in any medium that may reasonably be regarded as encouraging or persuading voters to vote, or not to vote, for a type of party or candidate described or indicated by reference to views or positions that are, or are not, held or taken (whether or not the name of the party or candidate is stated).
The definition of publishing is equally broad. You have published an election advertisement if you bring it to the notice of a person in any manner including displaying on any medium, distributing by any means, delivering to an address, leaving at a place, sending by post or otherwise, printing in a newspaper or other periodical, broadcasting by any means, disseminating by means of the Internet or any other electronic medium, storing electronically in a way that is accessible to the public, incorporating in a device for use with a computer or inserting in a film or video.
There are only three relevant exceptions that don’t count as electoral advertising:
- Talking face-to-face
- Editorial content in an established, publicly available periodical
- The views of an individual expressed on the internet
Failure to register can incur a penalty of $40,000.
You can view a list of promoters who have already registered at the Commission's website
Does all election advertising need a promoter statement?
The short answer is yes. All election advertising needs a promoter statement all the time.
- It doesn’t matter if it is before the regulated period or during it.
- It doesn’t matter if you are (or need to be) registered with the Electoral Commission or not.
All electoral advertising needs the statement!
Remember the definition of electoral advertisement is very broad. It is advertising in any medium that may reasonably be regarded as encouraging or persuading voters to vote, or not to vote, for a type of party or candidate described or indicated by reference to views or positions that are, or are not, held or taken (whether or not the name of the candidate or party is stated). It could be a letter to members. It could be a t-shirt. It could be an email or a facebook page.
The Electoral Commission has also strongly suggested that promoter statements should be in the standard format “Authorised by: Name of Organisation, Address of Organisation”. If you are a registered promoter, that name and address should be the same as your registration.
Again failure to include a promoter statement can incur a penalty of $40,000.
When Does Electoral Advertising Require Written Authorisation from Political Parties?
The Electoral Act states, “A person may publish or cause or permit to be published a election advertisement that may reasonably be regarded as encouraging or persuading voters to vote for a party or a candidate only if the publication of the advertisement is authorised in writing by the party secretary or candidate.”
Remember, as we keep saying, the definition of an election advertisement is broad – advertising in any medium that may reasonably be regarded as encouraging or persuading voters to vote, or not to vote, for a type of party or candidate described or indicated by reference to views or positions that are, or are not, held or taken (whether or not the name of the candidate or party is stated).
If it can be regarded as encouraging or persuading voters to vote for, you need the authorisation of the party/candidate.
There are two reasons for this:
- Parties and candidates will need to count what you have spent towards their election spending cap. For parties this may not be a big deal (it may be for candidates), but you will need to be able to provide them with information about the cost.
- If the Electoral Commission asks a party or candidate whether they authorised your advertisement and the party/candidate says no, you could be fined up to $40,000.
You do not have to “display” the party/candidate’s authorisation in your election advertisement.
To get authorisation you need to contact the relevant party secretary.
As a Registered Promoter Do We Have Have to File a Return of Election Expenses?
Election expenses are the advertising expenses incurred in relation to a promoter’s election advertisements. Given the broad definition of an election, most things that unions produce to communicate with members during the election campaign could be considered “election advertisements”. The advertising expense for an election advertisement includes the cost incurred in the preparation, design, composition, printing, postage, and publication of the advertisement and the reasonable market value of any material used for or applied towards the advertisement, including any such material that is provided free of charge or below reasonable market value. Don’t be fooled into thinking it is just the narrow cost of printing a flyer – it’s everything that goes into it.
Internal staff time attributable to production of election advertisements will also have to be counted (e.g. a certain number of hours and the employees gross hourly rate). One idea is to create a “job sheet” for each thing deemed an electoral advertisement and note the costs incurred at each stage as you go along.
With that in mind, a registered promoter is only required to file a return of election expenses if they spend more than $100,000 including GST in the regulated period (26 Aug to 25 Nov 2011). If that is the case a return must be filed within 70 working days after polling day. If you need to make a return forms are available from the Electoral Commission.
However, all promoters must have invoices/receipts for every election expenses payment of more than $50 and must “take all reasonable steps to ensure that all records, documents, and accounts that are necessary to enable a return to be verified” are retained until the 27 November 2014.
The Electoral Commission can require a registered promoter to provide audited accounts of their expenses (at the promoters expense) if it has reasonable grounds to believe it has been provided with false or misleading information.
The maximum election expenses that a registered promoter can incur during the regulated period is $300,000 including GST.
