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2019-2020-2021-2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
ELECTORAL LEGISLATION AMENDMENT (AUTHORISATIONS) BILL 2022
EXPLANATORY MEMORANDUM
(Circulated by authority of Special Minister of State,
the Hon Ben Morton MP)
Glossary
The following abbreviations and acronyms are used throughout this 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
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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.
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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.
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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.
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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.
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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 2 inserts new subsection 321D(5A). This subsection provides 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 in their
notifying particulars, subject to the following conditions:
a) if the registered name includes both a word or phrase and its abbreviation--the
abbreviation;
b) if the registered name includes "Incorporated" or an abbreviation of that
word--that word or its abbreviation;
c) if the registered name includes "of Australia"--those words;
d) if the registered name ends with "Australia"--that word; and
e) 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. This provision does not allow registered political parties to omit their entire name from
the notifying particulars. It establishes the minimum details required for a name in an
electoral authorisation.
15. This is demonstrated by the Note inserted at Item 2, which 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
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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.
16. 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 including "Party" at the end where these words do not
form part of a registered party name, does not affect the validity of an authorisation.
17. 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. If for example
"Quokka Party of Australia Inc.--NSW" had a registered abbreviation of "QPA",
authorising under the name "The Quokka Party (QPA)" is taken as a valid
authorisation 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.
18. 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.
19. 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.
20. 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.
21. 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
22. 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).
23. Item 3 repeals 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);".
24. Item 4 inserts new subsection 110C(5A). 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 under items 1 and 2 of the table in subsection
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110C(5). This is in addition to any other particulars determined under
subsection 321D(7) of the Electoral Act for that paragraph.
25. 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.
26. 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".'.
27. 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
28. 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).
29. Section 79A of the ABC Act regulates the broadcasting of political or controversial
matter.
30. 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).
31. Item 7 repeals 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);".
32. Item 8 inserts new subsection 79A(6A). 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 their required particulars. This is in addition to any other
particulars determined under subsection 321D(7) of the Electoral Act for that
paragraph.
33. 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
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Electoral Act. Where the entity is not a political party or a disclosure entity, the entity
is to use its name.
34. 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
35. 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 1-2 above).
36. 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).
37. 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);".
38. Item 11 inserts new subclause 1(3) 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 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 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
41. 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).
42. Item 12 inserts 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).
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43. Item 13 repeals 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);".
44. Item 14 inserts new subsection 70A(6A). This is consequential to the amendment to
the Electoral Act at Item 6, 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 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 14 also includes a Note providing an example of the effect of new subsection
70A(6A) - 'For example, under paragraph (a) the registered name "Quokka Party of
Australia Inc.--NSW" may be notified as "Quokka Party".'
47. 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.
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