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Executive Summary

Australia has compulsory voting. Federal election campaigns are traditionally six weeks. Australia has both public and private funding of political parties and political campaigns, and does not currently restrict the level or source of private political donations (other than via disclosure obligations). Legislation has been introduced into Parliament to reform election funding; however to date such legislation has not been passed. There is no limit on the amount of political advertising although commercial broadcasters are limited on the amount of advertising per se that may be shown.

Types of Elections

Australia is a parliamentary democracy. Federal elections may be for either the House of Parliament or for a referendum. Voting is compulsory for all Australian citizens above the age of eighteen.[1]

The Australian Electoral Commission (AEC), an independent statutory authority, is responsible for conducting federal elections, maintaining the Commonwealth electoral roll and undertaking a range of electoral education programs and activities. [2]

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Duration of Election Campaigns

Federal election campaigns are traditionally approximately six weeks. [3] Polling day [4] for federal elections must occur on a Saturday, [5] at least 33 days and no more than 58 days after the issue of the writs.[6]

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Funding of Election Campaigns and Disclosure of Donations

Candidates, registered political parties (including associated entities), and donors must file annual or election period financial disclosure returns with the Australian Electoral Commission.[7] The Australian Electoral Commission makes such returns publicly available.[8]

Returns must detail:

  • the total value of the donations received;
  • the total number of donors;
  • all individual donations received above the disclosure threshold (currently 10,900AUD);[9]
  • the details of donations (such as date received, amount and name and address of donor); and,
  • electoral expenditures (primarily advertising, printing and direct mail costs) incurred between the issue of the writ and polling day.[10]

Persons or organizations making donations to candidates in excess of the disclosure threshold must also lodge a donor return.[11]

Where a candidate receives at least 4% of the formal first preference votes, they (or their registered political party) are entitled to claim an amount of election funding.[12] This amount is calculated by multiplying the number of first preference votes received by the rate of payment (for 1 January 2009 to 31 June 2009 the rate of payment is 224.851 cents).[13] There is currently no requirement that candidates substantiate their claim by evidence of actual expenditure.

Proposed Reforms

The current government has introduced two legislative initiatives to reform political donations. These are:

  • Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2009

This bill amends the Commonwealth Electoral Act 1918 (Cth). The key amendments include:

  • Reduction of the donations disclosure threshold from $10,900 to $1000 and removal of indexation;
  • A prohibition against foreign donations;
  • A prohibition against anonymous donations above $50, but permitting anonymous donations below $50 where they are received at a general public activity (e.g. street stall) or a private event;
  • The introduction of a claims system for electoral funding and linking funding to actual electoral expenditures (this is, in part to prevent “celebrity candidates” from gaining a windfall by being entitled to funding in excess of their expenditures); and,
  • The introduction of a definition of “electoral expenditure,” creating an exhaustive list of the expenditures that may be used to claim election funding.

A version of this bill was originally introduced into Parliament in 2008 but was defeated in the Senate on March 11, 2009. The opposition maintained its objections and voted against the revised version of the bill when it was introduced into the House of Representatives on March 16, 2009; as a result it is likely that the bill will require the support of a minority party to be passed. The previous version of the bill did not have the support of this party and therefore it is unlikely this bill will be passed unless a negotiated compromise is reached by the minority party and the government.[14]

Tax Laws Amendment (Political Contributions and Gifts) Bill 2008

This bill is currently pending before Parliament,[15] and if passed will remove an existing tax deduction for individual taxpayers of political party membership fees paid on or after July 1, 2008, and will deny a tax deduction (to both individuals and corporations) for contributions or gifts made on or after July 1, 2008 to:

  • political parties;
  • Members of Parliament (both State, Territory and Federal);
  • members of a local governing body (such as a local council); and,
  • candidates (both party nominated and independent) for political office.

Currently a tax deduction (to a maximum of $1500 per annum for both individuals and corporations) is permitted for contributions and gifts to political parties registered under either federal or state or territory law. Prior to June 2006, the maximum threshold was $100 per annum, and only permitted in relation to political parties registered under federal law.[16]

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Regulation of Political Advertising

Australia does not have a right to free speech per se but does have, via the Constitution, an implied freedom of political communication.[17] Thus Australia regulates the format and presentation of political advertising, but has little regulation of the content of political advertising[18].

Printed matter – an “electoral advertisement, handbill, pamphlet, poster or notice”[19] containing “electoral matter”[20] must carry the name and address of the authorizing person, and, (unless in a newspaper) must also include the name and address of the printer.[21] An advertisement that contains electoral matter within a journal[21] must have “advertisement” printed as a headline[23] and must include the name and address of the authorizing person.[24]

Video recording –a video recording containing “electoral matter” must have the name and address of the authorizing person at the end of the recording.[25]

Internet advertising – any electoral advertising[26] appearing on the internet (excluding general commentary on a website) must contain the name and address[27] of the authorizing person.[28]

Exceptions - authors of “letters to the editor” and callers to talk-back radio shows do not have to be identified.[29] T-shirts, lapel buttons, lapel badges, pens, pencils, balloons or business or visiting cards that promote a candidate for election, or letters and cards (that bear the name and address of the sender and do not include a representation of a ballot sheet) are not required to contain details of the authorizing person or the printer.[30]

Broadcasts (television and radio) - conditions (regarding access, timing and identification) in relation to broadcasts of political and election matter[31] are imposed on broadcasting licensees.[32]

These conditions are:

  1. Equal access – where any election matter is broadcast during an election period by a broadcaster, that broadcaster must give all parties contesting the election a reasonable opportunity to have election matter broadcast during the election period.[33] It is not a requirement that the broadcaster broadcast the material for free;[34]
  2. Identification of authorizing party - when broadcasting political matter at the request of another person, a broadcaster must ensure the announcement[35] of identifying details of the person authorizing the political matter and the name of every speaker who form part of that matter;[36]
  3. Black Out Period - Broadcasters must comply with the “blackout” period (from midnight on the Wednesday before polling day to the close of polls on polling day);[37]
  4. Retain records of requesters of political advertising - a broadcaster must retain, for six weeks from the date of broadcast or until the end of the election,[38] records detailing the name, address and occupation of the person (or the name and address of the principal office where a company) of requesters for broadcasts of political matter;[39]
  5. Retain records of news or current affairs on political affairs - broadcaster who broadcast a matter in the form of news, an address, statement, commentary or discussion that relates to a political subject or current affairs must retain a record of the matter for six weeks (or 60 days if a complaint has been made about the matter) and must make such records available to the Australian Communications and Media Authority;[40]
  6. Identification of sponsorship of current affairs programs – Broadcasters of commercial radio have an obligation to provide an on-air disclosure of any commercial agreements (including payment of production costs) with sponsors or advertisers that may have the potential to affect the content of a current affairs program;[341] and,
  7. Compensation for advertisements on free to air – Where a licensee at no charge broadcasts a political debate [42] (at any time) or a policy speech (during an election period) then the displaced advertisements may be transferred to another time period.[43]

Spam and telemarketing calls - Electronic messages authorized by registered political parties are exempt from the prohibition on sending unsolicited electronic messages (known as “spam”).[44] Calls by registered political parties,[45] a member of Parliament or a candidate for election, are designated “telemarketing calls;” they are exempted from the operation of the Do Not Call Register.[46]

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False Advertising or Statements

It is an offense to print, publish (including publishing by radio or television),[47] or distribute[48] any matter or thing that is likely to mislead or deceive a voter in relation to casting their vote.[49] This is applicable to the marking of a ballot paper not for whom the vote is cast,[50] and is only applicable during the election period (i.e. from the time of the writs to the closing of the polls).[51]

It is an offense to publish or announce a claim, without the authority of the candidate, that any candidate is associated with or supports an association, league or other body of persons.[52]

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Political Advertising on the Day of Election

 Broadcasters must cease political advertisements in the three days before polling day (from midnight on the Wednesday before polling day to the close of the poll on polling day).[53]

Canvassing for or against a candidate or party is not permitted within six meters[54] of an entrance to a polling booth.[55] This prohibition extends to any use of loud speaker or public broadcasting devices that permit canvassing activities to be audible within a polling booth, at the entrance to a polling booth or within six meters of the entrance to a polling booth.[56] Officers[57] and scrutineers may not wear the badges or emblems of any political party or candidate within the polling booth on polling day.[58]

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For more information on Australia see:

Prepared by Lisa J. White, Foreign Law Specialist

April 2009

  1. Commonwealth Electoral Act 1918 (Cth) §§ 93, 245.  See also: AEC, ELECTORAL BACKGROUND NO. 17 – COMPULSORY VOTING, Oct. 2007, available at: http://www.aec.gov.au/pdf/backgrounders/17/EB_17_Compulsory _Voting.pdf (external link) (PDF) (last visited April 22, 2009). [Back to Text]
  2. Commonwealth Electoral Act 1918 (Cth) § 7.  The AEC is headed by a Chairperson (a current or ex judicial officer), the Electoral Commissioner, and a non-judicial member.  Commonwealth Electoral Act 1918 (Cth) § 6. [Back to Text]
  3. See dates of election period at AEC website, available at: http://www.aec.gov.au/Elections /Australian_Electoral_History/hor_dates.htm (external link) (last visited April 22, 2009). [Back to Text]
  4. Alternate voting methods (e.g. postal) are permitted under certain circumstances, but the majority of Australians cast their vote on polling day.  See: Commonwealth Electoral Act 1918 (Cth) §§ 181-262.  [Back to Text]
  5. Commonwealth Electoral Act 1918 (Cth) § 158. [Back to Text]
  6. The issuance of an electoral writ commands the electoral officer to hold an election and thus commences the election process.  Writs are issued within 10 days of dissolution of the House of Representatives (Commonwealth of Australia Constitution Act §§ 12, 32, Commonwealth Electoral Act 1918 (Cth) §§151-154)). However, in relation to Senate elections, this maximum period may not always be possible, as § 13 of the Australian Constitution requires the election to be completed by 30 June each third year.  The Electoral Roll is “closed” on the third working day after the date the writs (although generally the roll is not amended after the date of the writs) are issued, and candidates must be nominated between 10 and 27 days from the date the writs are issued.  The polling date must be more than 23 but less than 31 days from the date of the nomination of the candidates.  Commonwealth Electoral Act 1918 (Cth) §§ 155 - 157.  [Back to Text]
  7. Id. §§ 304 - 306A, 314AB – 314AEC. [Back to Text]
  8. Australian Electoral Commission website ‘FINANCIAL DISCLOSURE’, available at: http://www.aec.gov.au/Parties_and_Representatives/financial_disclosure/index.htm (external link) (last visited April 27, 2009). [Back to Text]
  9. See the Australian Electoral Commission website for current and historical disclosure thresholds at: http://www.aec.gov.au/Parties_and_Representatives/public_funding/threshold.htm (external link) (last visited April 22, 2009).  [Back to Text]
  10. Commonwealth Electoral Act 1918 (Cth) §§ 303-309, 313-314, 314AA-314AEC. [Back to Text]
  11. Id. §§ 305A, 305B. [Back to Text]
  12. Senate candidates pay a $1000AUD deposit upon their nomination, and House of Representatives candidates pay $500AUD.  These deposits are returned if a candidate gains more than 4% of the total first preference votes, or if the candidate is in a group of Senate candidates which polls at least 4% of the total first preference votes.  Commonwealth Electoral Act 1918 (Cth) §§ 294-297. Commonwealth Electoral Act 1918 (Cth) § 294. [Back to Text]
  13. See the Australian Electoral Commission website, available at: http://www.aec.gov.au/Parties_ and_Representatives/public_funding/Current_Funding_Rate.htm (external link) (last visited April 22, 2009). [Back to Text]
  14. Horne, N. Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2009, Bills Digest No. 115 2008-09, Australian Parliamentary Library, 2009, p. 4. [Back to Text]
  15. This bill is currently pending in the House of Representatives.  A similar bill was negated by the Senate in 2008. [Back to Text]
  16. For further information see Nielson L, Tax Laws Amendment (Political Contributions and Gifts) Bill 2008, Bills Digest No. 11 2008-2009, Australian Parliamentary Library 2008.  Available at: http://www.aph.gov.au/library/pubs/bd/2008-09/09bd011.pdf (external link) (PDF) (last visited April 22, 2009). [Back to Text]
  17. This right has been judicially determined, and found to arise due to the nature and structure of the Australian Constitution.  See: Nationwide News Pty Ltd v. Wills(1992) 177 CLR 1; Australian Capital Television v. The Commonwealth (1992) 177 CLR 106; Theophanous v. Herald and Weekly Times Ltd (1994) 182 CLR 104; West Australian Newspapers Ltd (1994) 182 CLR 211; Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520; Levy v. Victoria (1997) 189 CLR 579.  See also: Jordan R, FREE SPEECH AND THE CONSTITUTION, RESEARCH NOTE NO. 42 2001-02, Australian Parliamentary Library, June 2002, available at: http://www.aph.gov.au/LIBRARY/Pubs/RN/2001-02/02rn42.htm (external link) (last visited April 22, 2009). [Back to Text]
  18. Australian Parliamentary Library, Research Brief, Political Advertising in Australia, No. 5, 2004, Nov. 29, 2004. [Back to Text]
  19. is, does not include an advertisement in a newspaper announcing the holding of a meeting.  Id. § 328(5). [Back to Text]
  20. That is, “means matter which is intended or likely to affect voting in an election.”  Id. § 4. [Back to Text]
  21. Commonwealth Electoral Act 1918 (Cth) §§ 328(1)(b). [Back to Text]
  22. Journal includes newspaper, magazine or other periodical, whether published for sale or free distribution. Commonwealth Electoral Act 1918 (Cth) § 331(3). [Back to Text]
  23. Id. § 331. [Back to Text]
  24. Id. § 328.  It is an offence to write, draw or depict any electoral matter directly on any roadway, footpath, building, vehicle, vessel, hoarding or place.  See also § 334. [Back to Text]
  25. Id. § 328(1A). [Back to Text]
  26. In contrast to the regulation of printed material, the use of advertisement in § 328A does not refer to electoral matter and therefore any “announcement designed to attract public attention, which was intended to affect voting in a federal election” would fall within § 328A. AEC, ELECTORAL BACKGROUND NO. 15 – ELECTORAL ADVERTISING, Aug. 2007 ¶ 30-31, available at: http://www.aec.gov.au/pdf/backgrounders/15/EB_15_Electoral _Advertising07.pdf (external link) (PDF) (last visited April 22, 2009). [Back to Text]
  27. Address must be a street address (but does not have to be a residential address) and must not be a post office box. Commonwealth Electoral Act 1918 (Cth) § 328A(4). [Back to Text]
  28. Id. § 328A(1). [Back to Text]
  29. See AEC, ELECTORAL BACKGROUND NO. 15 – ELECTORAL ADVERTISING, Aug. 2007, available at: http://www.aec.gov.au/pdf/backgrounders/15/EB_15_Electoral_Advertising07.pdf (external link) (PDF) (last visited April 22, 2009). [Back to Text]
  30. Commonwealth Electoral Act 1918 (Cth) § 328(3). [Back to Text]
  31. Election matter, political matter and election period are all defined in Broadcasting Services Act 1992 (Cth) Schedule 2 clause 1.  Election means an election to a Parliament or a local government authority of a State or Territory; Election Advertisement, in relation to an election, means: (a) an advertisement; (i) that contains election matter that relates to that election; and (ii) with respect to the broadcasting of which the relevant licensee has received or is to receive, directly or indirectly, any money or other consideration; or (b) an announcement containing a statement to the effect that a program that is to be or has been broadcast is or was sponsored by a person or persons and indicating that the person is a candidate, or one or more of the persons is or are candidates, at the election; or (c) an announcement containing a statement to the effect that a program that is to be or has been broadcast is or was sponsored by a particular political party where a candidate at the election belongs to that party.  Election Matter, in relation to an election, means matter of any of the following kinds: (a) matter commenting on, or soliciting votes for, a candidate at the election; (b) matter commenting on, or advocating support of, a political party to which a candidate at the election belongs; (c) matter commenting on, stating or indicating any of the matters being submitted to the electors at the election or any part of the policy of a candidate at the election or of the political party to which a candidate at the election belongs; (d) matter referring to a meeting held or to be held in connection with the election. [Back to Text]
  32. This includes commercial television broadcasting licensees, commercial radio broadcasting licensees, community broadcasting licensees, subscription television broadcasting licensees and persons providing broadcasting services under class licenses (including subscription and open narrowcasting services).  Broadcasting Services Act 1992 (Cth) Schedule 2.  While there is no limit on the amount of political advertising, there is a limit on the amount of advertising that a broadcaster may broadcast (generally no more than 13-15 minutes per hour).  Broadcasting Services Act 1992 (Cth) § 123; Commercial Television Industry Code of Practice, available at: http://www.freetv.com.au/Content_Common/pg-Code-of-Practice.seo (external link) (last visited April 22, 2009), and Australian Subscription Television and Radio Association Code of Practice available at: http://www.astra. org.au/article.asp?section=4&option=3&content=16 (external link) (last visited April 22, 2009).  During an election period, broadcasters may broadcast an additional minute per hour of non-program material provided that this minute is election material. [Back to Text]
  33. Broadcasting Services Act 1992 (Cth) Schedule 2, clause 3(2). [Back to Text]
  34. Id. Schedule 2 clause 3(3). [Back to Text]
  35. On radio, the announcement must be spoken; on television it must be spoken and also appear as written text.  Id. Schedule 2, clause 1 and Australian Government, Australian Communications and Media Authority (ACMA), BROADCASTING AND COMMUNICATION OF POLITICAL AND ELECTION MATTER, ACMA website, available at: http://www.acma.gov.au/WEB/STANDARD/pc=PC_310646 (external link) (last visited April 22, 2009)[Back to Text]
  36. Broadcasting Services Act 1992 (Cth) Schedule 2, clauses 1, 4.  Where the matter is authorized by a political party it must include the name of the party, the town, city or suburb of the principal office of the political party, the name of the natural person responsible for the authorization.  If the political matter was authorized by a person other than a political party, the name of the person who authorized the broadcasting of the political matter; and the town, city or suburb in which they reside (or if a corporation or association where the principal office is situated) must be included. [Back to Text]
  37. Id. Schedule 2, clause 3A.  The blackout period is applicable to areas where the election is being held. [Back to Text]
  38. Where the matter relates to an election or referendum and was broadcast during the relevant election period. [Back to Text]
  39. Australian Communications and Media Authority (ACMA) may direct a broadcaster to retain records for a longer period.  If requested, these records must be provided to ACMA. Broadcasting Services Act 1992 (Cth) Schedule 2 clause 4(3). [Back to Text]
  40. The ACMA may direct a broadcaster to retain the records for a longer period of time.  Id. Schedule 2 clauses 5(2), (3), (6) and (8). [Back to Text]
  41. Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2000.  Broadcasting Services Act 1992 (Cth) Schedule 2 clauses 8(1)(b), 9(1)(b), 10(1)(b), 11(1)(b).  Licensees must also keep a register of commercial agreements between sponsors and presenters of current affairs programs and make it available to ACMA and the public, and ensure that a condition of employment of presenters of current affairs programs is that they comply with relevant obligations imposed by the Act, the codes and the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2000. [Back to Text]
  42. The debate must be between leaders of political parties. [Back to Text]
  43. The time period must be within 14 days and to a maximum of one minute per hour.  Commercial Television Code Industry Code of Practice 2004 clause 5.9. [Back to Text]
  44. Spam Act 2003 (Cth) §§ 3, 16 and schedule 1, clause 3. [Back to Text]
  45. Includes calls authorized by a registered political party. [Back to Text]
  46.  Do Not Call Register Act 2006 (Cth) § 11(1), Schedule 1, clause 3. [Back to Text]
  47. Commonwealth Electoral Act 1918 (Cth) § 329(6). [Back to Text]
  48. Or to cause to be so printed or distributed. [Back to Text]
  49. Commonwealth Electoral Act 1918 (Cth) § 329. [Back to Text]
  50. See Evans v Crichton-Browne (1981) 147 CLR 169. [Back to Text]
  51. Commonwealth Electoral Act 1918 (Cth) § 329(1) refers to “relevant period in relation to an election” and is defined in § 322. [Back to Text]
  52. Id. § 351(1).  There is no longer any specific provision addressing false claims regarding candidates, and candidates must now seek redress for defamation under statutory or common law. [Back to Text]
  53. Broadcasting Services Act 1992 (Cth) Schedule 2, clause 3A(2). [Back to Text]
  54. Approximately 19.7 feet. [Back to Text]
  55. Commonwealth Electoral Act 1918 (Cth) § 340.  [Back to Text]
  56. Id. § 340(1A).  [Back to Text]
  57. “Officer includes the Electoral Commissioner, the Deputy Electoral Commissioner, the Australian Electoral Officer for a State or Territory, a Divisional Returning Officer, an Assistant Returning Officer, an Assistant Divisional Returning Officer, an Antarctic Returning Officer, an Assistant Antarctic Returning Officer, a presiding officer, a deputy presiding officer, a substitute presiding officer, an assistant presiding officer, a pre-poll voting officer, an electoral visitor, a mobile polling team leader and a mobile polling team member.”  Commonwealth Electoral Act 1918 (Cth) § 4. [Back to Text]
  58. Id. § 341. [Back to Text]

Last Updated: 09/16/2014