Political Broadcasts and Political Disclosures Act 1991 (Cth)

Political Broadcasts and Political Disclosures Act 1991 No. 203 of 1991 TABLE OF PROVISIONS PART 1—INTRODUCTORY Section 1. Short title 2. Commencement 3. Report into operation of Act PART 2—AMENDMENTS OF THE BROADCASTING ACT 1942 4. Principal Act 5. Interpretation 6. Functions and powers of Tribunal 7. Insertion of new Part: PART IIId—POLITICAL BROADCASTS Division 1—Introductory 95. Application and operation Division 2—Political advertisements, etc. 95a. Certain broadcasts not prevented 95b. Certain matter not to be broadcast during Commonwealth elections etc. 95c. Certain matter not to be broadcast during Territory elections 95d. Political advertisements not to be broadcast during State elections 95e. Some matter not to be broadcast during certain other periods TABLE OF PROVISIONS—continued Section Division 3—Free election broadcasting time 95f. Application of Division to radio broadcasts 95g. Election broadcasts 95h. Automatic grant of free time to certain parties 95j. Regulations for the purposes of section 95h 95k. Applications for grant of free time 95l. Grant of free time on applications in relation to Senate elections 95m. Grant of free time on other applications 95n. Notification of grants 95p. Allocation to broadcasters 95q. Broadcasting of election broadcasts 95r. Appeals Division 4—Policy launches 95s. Broadcasting policy launches Division 5—Miscellaneous 95t. Tribunal to consider certain applications, complaints etc. immediately 95u. Powers of Federal Court of Australia 8. Broadcasting or televising of political matter or controversial matter 9. Identification etc. in relation to political matter PART 3—AMENDMENTS OF THE COMMONWEALTH ELECTORAL ACT 1918 10. Principal Act 11. Reports by Commission 12. Insertion of new section: 17a. Certain particulars not to be included in reports 13. Interpretation 14. Disclosure of gifts 15. Expenditure incurred for political purposes 16. Certain gifts not to be received 17. Nil returns 18. Interpretation 19. Returns of electoral expenditure 20. Insertion of new section: 311a. Annual returns of income and expenditure of Commonwealth Departments 21. Nil returns 22. Insertion of new Division: Division 5a—Annual returns of income and expenditure 314aa. Annual returns of income and expenditure 23. Offences 24. Investigation etc. 25. Records to be kept 26. Insertion of new section: 318a. Application of subsections 305 (1) and 309 (4) in certain cases 27. Inspection and supply of copies of claims and returns 28. Interference with political liberty etc. 29. Voiding election for illegal practices etc. 30. Insertion of new section: 386a. Particulars of candidates 31. Application to A.C.T. elections TABLE OF PROVISIONS—continued Section PART 4—AMENDMENTS OF THE RADIOCOMMUNICATIONS ACT 1983 32. Principal Act 33. Conditions to which transmitter licence is subject PART 5—AMENDMENT OF THE REFERENDUM (MACHINERY PROVISIONS) ACT 1984 34. Principal Act 35. Insertion of new section: 108a. Certain other matters not to invalidate referendum PART 6—AMENDMENTS OF THE INCOME TAX ASSESSMENT ACT 1936 36. Principal Act 37. Losses and outgoings 38. Contributions, pensions, etc. Political Broadcasts and Political Disclosures Act 1991 No. 203 of 1991 An Act to amend the Broadcasting Act 1942, the Commonwealth Electoral Act 1918, the Radiocommunications Act 1983, the Referendum (Machinery Provisions) Act 1984 and the Income Tax Assessment Act 1936, and for related purposes [Assented to 19 December 1991] The Parliament of Australia enacts: PART 1—INTRODUCTORY Short title 1. This Act may be cited as the Political Broadcasts and Political Disclosures Act 1991. Commencement 2. (1) Parts 1 and 3 commence on the day on which this Act receives the Royal Assent. (2) Subject to subsection (3), Parts 2, 4 and 5 commence on a day to be fixed by Proclamation. (3) If Parts 2, 4 and 5 do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. Report into operation of Act 3. (1) Subject to subsection (5): (a) the Australian Electoral Commission must review such provisions of this Act as are prescribed for the purposes of this paragraph, and report to the Minister accordingly; and (b) such other persons or bodies as are prescribed must review such provisions of this Act as are prescribed for the purposes of this paragraph, and report to the Minister accordingly. (2) A report referred to in subsection (1) may include suggestions for amendments of this Act to solve problems identified in the report. (3) A review referred to in subsection (1) must commence within 6 months after the last declaration of a poll at the second general election of members of the House of Representatives held after the commencement of this section. (4) The Minister shall cause copies of a report referred to in subsection (1) to be laid before each House of the Parliament within 15 sitting days after its receipt by the Minister. (5) Subsection (1) does not apply if, 3 months after the first sitting of the Parliament elected at the second general election of members of the House of Representatives after the commencement of this section, an inquiry into some or all of the provisions of this Act by a committee of the Parliament is in progress but has not concluded. (6) The Governor-General may make regulations prescribing matters for the purposes of this section. PART 2—AMENDMENTS OF THE BROADCASTING ACT 1942 Principal Act 4. In this Part, "Principal Act" means the Broadcasting Act 19421. Interpretation 5. Section 4 of the Principal Act is amended: (a) by omitting the definition of "Parliament" from subsection (1) and substituting the following definition: " 'Parliament' means: (a) the Parliament of the Commonwealth; or (b) a State Parliament; or (c) a legislature of a Territory;"; (b) by inserting in subsection (1) the following definitions: " 'broadcaster' means the Corporation, the Service or a licensee; 'election' includes a by-election; 'election period' means: (a) in relation to an election to the Legislative Council of the State of Tasmania, or an ordinary election to the Legislative Assembly for the Australian Capital Territory—the period that starts 33 days before the polling day for the election and ends at the close of the poll on that day; and (b) in relation to any other election to a Parliament—the period that starts on: (i) the day on which the proposed polling day for the election is publicly announced; or (ii) the day on which the writs for the election are issued; whichever happens first, and ends at the close of the poll on the polling day for the election; and (c) in relation to an election to a local government authority—the period that starts 33 days before the polling day for the election and ends at the close of the poll on that day; and (d) in relation to a referendum whose voting day is the same as the polling day for an election to the Parliament of the Commonwealth—the period that is the same as the election period in relation to that election; and (e) in relation to any other referendum—the period that starts 33 days before the voting day for the referendum and ends at the close of voting on that day; 'exempt matter' means any of the following: (a) matter directly relating to warnings of impending natural disasters or military or civil disorders; (b) matter relating to measures (including relief measures) taken to deal with such disasters or disorders and with their consequences; (c) matter provided by the authorities responsible for the conduct of an election to a Parliament or a local government authority, or of a referendum, including material relating to the procedures and polling places for the election or referendum and the promotion of participation in the election or referendum; (d) advertisements of goods and services offered for sale by or on behalf of: (i) the government, or a government authority, of the Commonwealth; or (ii) the government, or a government authority, of a Territory; or (iii) the government, or a government authority, of a State; being advertisements that do not contain a political reference; (e) advertisements relating to vacant positions or calling for expressions of interest in appointment to public offices; (f) advertisements calling for tenders; (g) announcements of the kind mentioned in paragraph 31 (2) (a) of the Australian Broadcasting Corporation Act 1983, or announcements carried by the Service relating to any activity or proposed activity of the Service; (h) announcements relating to any public inquiry or public hearing conducted under a law of the Commonwealth, or of a State or Territory; (i) any notice or announcement required to be broadcast by or under any law of the Commonwealth or of a State or Territory, other than a prescribed notice or announcement; 'government authority' means: (a) in relation to the Commonwealth: (i) a Department of State of the Commonwealth; or (ii) any other authority or body (whether incorporated or not) that is established for a public purpose by the Commonwealth, regardless of the way in which the authority or body is so established; and (b) in relation to a State or Territory: (i) a Department of State of the State or Territory; or (ii) a local government authority of the State or Territory; or (iii) any other authority or body (whether incorporated or not) that is established for a public purpose by the State or Territory, regardless of the way in which the authority or body is so established; 'legislature of a Territory' means: (a) the Legislative Assembly for the Australian Capital Territory; or (b) the Legislative Assembly of the Northern Territory; or (c) such other Territory legislative bodies (if any) as are prescribed; 'licensee', when used in Part IIId, includes: (a) the holder of an MCS permit; and (b) the holder of a temporary transmission permit; 'ordinary election', in relation to the Legislative Assembly for the Australian Capital Territory, has the same meaning as in the Australian Capital Territory (Electoral) Act 1988; 'policy launch', in relation to a political party, means a single spoken or written statement of all or any of the party's policies, whether or not the statement is accompanied by other incidental matter; 'political reference' means material comprising an express or implicit reference to, or comment on, any of the following: (a) an election to the Parliament of the Commonwealth or of a State, or to the legislature of a Territory, or to a local government authority of a State or Territory, including any such election that might be held in the future; (b) the government or the opposition, or a previous government or opposition, of the Commonwealth or of a State or Territory; (c) a member of the Parliament of the Commonwealth or of a State, or of the legislature of a Territory; (d) a political party, or a branch or division of a political Party; (e) a candidate or group of candidates in an election referred to in paragraph (a); (f) an issue submitted or otherwise before, or likely to be submitted or otherwise before, electors in such an election; 'referendum' means the submission to the electors of a proposed law for the alteration of the Constitution, whether or not the proposal to make the submission has been announced; 'Senate election' has the same meaning as in the Commonwealth Electoral Act 1918;". Functions and powers of Tribunal 6. Section 16 of the Principal Act is amended by inserting after paragraph (1) (c) the following paragraphs: "(ca) by order, to determine guidelines to be observed by a licensee within the meaning of Part IIId in respect of the hours during which, and the manner in which, policy launches of political parties are to be broadcast; (cb) by order, to determine guidelines, not inconsistent with the regulations, to be observed by a broadcaster in respect of the days and times when, and the manner in which, election broadcasts within the meaning of Division 3 of Part IIId are to be made;". 7. After Part IIIc of the Principal Act the following Part is inserted: "PART IIId—POLITICAL BROADCASTS "Division 1—Introductory Application and operation "95. (1) This Part applies to a licensee whether the licence or permit held by the licensee was granted before or after the commencement of this Part. "(2) It is the intention of the Parliament that the several provisions of this Part should operate to the extent to which they are capable of validly operating. "Division 2—Political advertisements, etc. Certain broadcasts not prevented "95a. (1) Nothing in this Part prevents a broadcaster from broadcasting: (a) an item of news or current affairs, or a comment on any such item; or (b) a talkback radio program. "(2) Nothing in this Part prevents the holder of a public radio licence who provides a service for visually handicapped persons from broadcasting any material that he or she is permitted to broadcast under section 119ab. "(3) Nothing in this Part prevents a broadcaster from broadcasting an advertisement for, or on behalf of, a charitable organisation if: (a) the advertisement is aimed at promoting the objects of the organisation; and (b) the advertisement does not explicitly advocate voting for or against a candidate in an election or a political party. "(4) Nothing in this Part prevents a broadcaster from broadcasting public health matter, whether by way of advertisement or otherwise. "(5) In this section: 'charitable organisation' means a public organisation whose objects are to benefit the public through the relief of poverty, or the advancement of education, religion, public health or science; 'public health matter' means any matter relating to public health, other than matter that: (a) directly or indirectly promotes or criticises a particular public health system; or (b) explicitly advocates voting for or against a candidate in an election or a political party. Certain matter not to be broadcast during Commonwealth elections etc. "95b. (1) A broadcaster must not, during the election period in relation to an election or a referendum, broadcast any matter (other than exempt matter) for or on behalf of the government, or a government authority, of the Commonwealth. "(2) A broadcaster must not, during the election period in relation to an election or a referendum, broadcast a political advertisement for or on behalf of a government, or a government authority, of a Territory. "(3) A broadcaster must not, during the election period in relation to an election or a referendum, broadcast a political advertisement for or on behalf of a government, or a government authority, of a State. "(4) Subject to Divisions 3 and 4, a broadcaster must not, during the election period in relation to an election or a referendum, broadcast a political advertisement: (a) for or on behalf of a person other than a government or government authority; or (b) on his or her own behalf. "(5) Where the election concerned is a by-election, this section is taken to apply only to broadcasting: (a) in the case of a broadcast made as part of a broadcasting service without a service area—to the area in which the relevant electoral district, or any part of it, overlaps with the area in which the broadcasting service is normally received; and (b) in the case of a broadcast made as part of a broadcasting service with a service area—to the area in which the relevant electoral district, or any part of it, overlaps with the service area. "(6) In this section: 'election' means an election to the Parliament of the Commonwealth; 'political advertisement' means an advertisement that contains political matter; 'political matter' means: (a) matter intended or likely to affect voting in the election or referendum concerned; or (b) matter containing prescribed material; but does not include exempt matter; 'prescribed material' means material containing an express or implicit reference to, or comment on, any of the following: (a) the election or referendum concerned; (b) a candidate or group of candidates in that election; (c) an issue submitted or otherwise before electors in that election; (d) the government, the opposition, or a previous government or opposition, of the Commonwealth; (e) a member of the Parliament of the Commonwealth; (f) a political party, or a branch or division of a political party. Certain matter not to be broadcast during Territory elections "95c. (1) A broadcaster must not, during the election period in relation to an election to the legislature, or to a local government authority, of a Territory, broadcast any matter (other than exempt matter) for or on behalf of the government, or a government authority, of that Territory. "(2) A broadcaster must not, during the election period in relation to an election to the legislature, or to a local government authority, of a Territory, broadcast a political advertisement for or on behalf of the government, or a government authority, of another Territory. "(3) A broadcaster must not, during the election period in relation to an election to the legislature, or to a local government authority, of a Territory, broadcast a political advertisement for or on behalf of the government, or a government authority, of the Commonwealth. "(4) A broadcaster must not, during the election period in relation to an election to the legislature, or to a local government authority, of a Territory, broadcast a political advertisement for or on behalf of a government, or a government authority, of a State. "(5) Subject to Divisions 3 and 4, a broadcaster must not, during the election period in relation to an election to the legislature, or to a local government authority, of a Territory, broadcast a political advertisement: (a) for or on behalf of a person other than a government or government authority; (b) on his or her own behalf. "(6) Where the election concerned is a by-election, this section is taken to apply only to broadcasting: (a) in the case of a broadcast made as part of a broadcasting service without a service area—to the area in which the relevant electoral district, or any part of it, overlaps with the area in which the broadcasting service is normally received; and (b) in the case of a broadcast made as part of a broadcasting service with a service area—to the area in which the relevant electoral district, or any part of it overlaps with the service area. "(7) In this section: 'political advertisement' means an advertisement containing political matter; 'political matter' means: (a) matter intended or likely to affect voting in the election concerned; or (b) matter containing prescribed material; but does not include exempt matter; 'prescribed material' means material containing an express or implicit reference to, or comment on, any of the following: (a) the election concerned; (b) a candidate or group of candidates in that election; (c) an issue submitted or otherwise before electors in that election; (d) the government, the opposition, or a previous government or opposition, of the Territory in which that election is held; (e) a member of the legislature of that Territory; (f) a political party, or a branch or division of a political party. Political advertisements not to be broadcast during State elections "95d. (1) A broadcaster must not, during the election period in relation to an election, broadcast a political advertisement for or on behalf of the government, or a government authority, of the Commonwealth. "(2) A broadcaster must not, during the election period in relation to an election, broadcast a political advertisement for or on behalf of the government, or a government authority, of a Territory. "(3) A broadcaster must not, during the election period in relation to an election, broadcast a political advertisement for or on behalf of the government, or a government authority, of a State. "(4) Subject to Divisions 3 and 4, a broadcaster must not, during the election period in relation to an election, broadcast a political advertisement: (a) for or on behalf of a person other than a government or government authority; or (b) on his or her own behalf. "(5) Where the election concerned is a by-election, this section is taken to apply only to broadcasting: (a) in the case of a broadcast made as part of a broadcasting service without a service area—to the area in which the relevant electoral district, or any part of it, overlaps with the area in which the broadcasting service is normally received; and (b) in the case of a broadcast made as part of a broadcasting service with a service area—to the area in which the relevant electoral district, or any part of it overlaps with the service area. "(6) In this section, unless the contrary intention appears: 'election' means an election to a State Parliament or to a local government authority of a State; 'political advertisement' means an advertisement containing political matter; 'political matter' means: (a) matter intended or likely to affect voting in the election concerned; or (b) matter containing prescribed material; but does not include exempt matter; 'prescribed material' means material containing an express or implicit reference to, or comment on, any of the following: (a) the election concerned; (b) a candidate or group of candidates in that election; (c) an issue submitted or otherwise before electors in that election; (d) the government, the opposition, or a previous government or opposition, of the State in which that election is held; (e) a member of the Parliament of that State; (f) a political party, or a branch or division of a political party. Some matter not to be broadcast during certain other periods "95e. (1) If, when a prescribed day in relation to the Parliament of the Commonwealth occurs, it does not do so during the election period in relation to an election to the Parliament, a broadcaster must not broadcast any matter (other than exempt matter) for or on behalf of the government, or a government authority, of the Commonwealth during the period that starts on that day and ends immediately before the next election period starts. "(2) If, when a prescribed day in relation to the legislature of a Territory (other than the Australian Capital Territory) occurs, it does not do so during the election period in relation to an election to the legislature, a broadcaster must not broadcast any matter (other than exempt matter) for or on behalf of the government, or a government authority, of that Territory during the period that starts on that day and ends immediately before the next election period starts. "(3) A broadcaster must not broadcast any matter (other than exempt matter) for or on behalf of the government, or a government authority, of the Australian Capital Territory during the period that: (a) starts 3 calendar months before the day on which the Legislative Assembly for the Australian Capital Territory is next due to expire; and (b) ends immediately before the start of the election period in relation to the next ordinary election to the Legislative Assembly. "(4) In this section: 'election' does not include a by-election; 'prescribed day' means: (a) in relation to the Parliament of the Commonwealth—the day that occurs 3 calendar months before the day on which the House of Representatives is next due to expire; and (b) in relation to the legislature of a Territory—the day that occurs 3 calendar months before the day on which the legislature is next due to expire. "Division 3—Free election broadcasting time Application of Division to radio broadcasts "95f. (1) Nothing in this Division is to be treated as requiring or permitting the Service or a licensee to broadcast an election broadcast by radio. "(2) Nothing in this Division is to be treated as requiring the Corporation to broadcast an election broadcast by radio other than on its metropolitan and regional AM networks. "(3) Despite section 95g, the Corporation may broadcast by radio a broadcast that complies with paragraphs 95g (a) to (e), inclusive, but which lasts for longer than 1 minute, and any such broadcast is taken to be an election broadcast for the purposes of this Division. "(4) Despite anything in this Division, the Corporation may determine the times when it broadcasts election broadcasts by radio. Election broadcasts "95g. Subject to section 95f, a broadcast made on behalf of a political party, a candidate or a group in relation to an election is, for the purposes of this Division, taken to be an election broadcast if, and only if: (a) the broadcast is of an advertisement that consists of words spoken by a single speaker (without dramatic enactment or impersonation) accompanied, where the advertisement is televised, by a transmitted image that consists of the head and shoulders of the speaker; and (b) the broadcast does not include any other image, or includes a single additional static background image only; and (c) no other vocal sounds are included in the broadcast; and (d) the speaker is a candidate in the election or a member of the Parliament of the Commonwealth or a State, or of a legislature of a Territory; and (e) if section 117 applies—the required particulars within the meaning of that section are announced by the person who speaks the words of the advertisement; and (f) the broadcast lasts for: (i) in the case of a televised broadcast—2 minutes; and (ii) in the case of a broadcast by radio—1 minute; and (g) the broadcast is made using a unit of free time allocated to the broadcaster under section 95p. Automatic grant of free time to certain parties "95h. (1) The Tribunal must, within the prescribed period in relation to an election, grant a period of free time to each political party that: (a) was represented by one or more members in the relevant Parliament or legislature immediately before the end of the last sittings of that Parliament or legislature held before the election; and (b) is contesting the election with at least the prescribed number of candidates. "(2) The total free time period to be granted to political parties under subsection (1) is the period equal to 90% of the total time in respect of the election, and the Tribunal must grant each of those parties such part of that total free time period as it determines in accordance with the regulations. "(3) Regulations made for the purposes of subsection (2) must, so far as is practicable, give effect to the principle that the amount of free time granted to each party should bear the same proportion to the total free time period mentioned in that subsection as the number of formal first preference votes obtained by that party or its candidates at the last election to the relevant Parliament or legislature bears to the total number of such votes obtained by all of the parties mentioned in subsection (1) or their candidates at that last election. "(4) In this section: 'election' means an election (other than a by-election) to: (a) the Parliament of the Commonwealth; or (b) the legislature of a Territory; or (c) a State Parliament; 'total time', in relation to an election, means the total free time available in respect of the election, being a time worked out in accordance with the regulations. Regulations for the purposes of section 95h "95j. This Part does not apply in relation to an election to the Parliament of the Commonwealth or of a State, or in relation to an election to the legislature of a Territory until regulations are made for the purposes of section 95h that relate to that election. Applications for grant of free time "95k. (1) The chief executive officer of a political party (other than a political party to which section 95h applies), or any other person or group of persons, may apply to the Tribunal for a grant of free time in relation to an election (other than a by-election) to: (a) the Parliament of the Commonwealth; or (b) the legislature of a Territory; or (c) a State Parliament. "(2) An application must be in the approved form and made in accordance with the regulations. Grant of free time on applications in relation to Senate elections "95l. (1) If, on receipt of an application by a person for a grant of free time in relation to a Senate election, the Tribunal is satisfied that: (a) the person is a candidate in the election; and (b) the person was a member of the Senate immediately before the end of the last sittings of the Senate held before the election; and (c) the person is not a member of a political party to whom a grant of free time has been made under section 95h; the tribunal must grant the person a period of free time. "(2) The period to be granted to a person under this section is a period determined by the Tribunal in accordance with the regulations, being a period equal to not less than 5% of the total time in respect of the election nor more than 10% of that total time. "(3) If the Tribunal is required under this section to grant a period of free time to 2 or more persons, the Tribunal must divide the period determined under subsection (2) between them in accordance with the regulations. "(4) In this section: 'total time' has the same meaning as in section 95h. Grant of free time on other applications "95m. (1) If, on receipt of an application for the grant to a political party of a period of free time in relation to an election, the Tribunal is satisfied that the party has endorsed one or more candidates to contest the election, the Tribunal may, subject to the regulations, grant the party a period of free time determined in accordance with the regulations. "(2) If, on receipt of an application for the grant to a person or a group of persons (other than a person or persons to whom section 95l applies) of a period of free time in relation to an election, the Tribunal is satisfied that the person, or each of the persons, is a candidate in the election, the Tribunal may grant the person or group a period of free time in accordance with the regulations. Notification of grants "95n. (1) The Tribunal must, in accordance with the regulations, notify: (a) the chief executive officer of each political party to which a period of free time has been granted; and (b) every other person to whom such a period has been granted; of the period so granted. "(2) If the Tribunal refuses to grant an application under section 95l or 95m, the Tribunal must, in accordance with the regulations, notify the applicant accordingly and specify its reasons for refusing the application. "(3) The Tribunal must cause a notice to be published in the Gazette specifying: (a) the political parties and persons to whom a period of free time has been granted; and (b) the period that has been granted to each of them. Allocation to broadcasters "95p. (1) The Tribunal must divide each period of free time granted under this Division into units of free time in accordance with the regulations. "(2) If the division of a period of free time gr