Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021

The instrument directly affects any person or organisation that communicates electoral matter or referendum matter in Australia during a federal election or referendum period. This includes political parties, candidates, lobby groups, unions, corporations, non-profit organisations, and individual citizens who engage in political communication. The compliance burden falls most heavily on entities that produce printed materials such as how-to-vote cards, flyers, posters, letters, and journal advertisements. It also affects broadcasters: radio stations must ensure audio announcements of particulars at the end of broadcasts; television stations must ensure both audio and visual display of particulars. Digital publishers and social media users are affected by the requirements for non-printed communications, including the option to place particulars on a webpage accessible via URL or in the footer of a webpage. The instrument also affects the ABC and SBS, as well as commercial broadcasters regulated under the Broadcasting Services Act 1992, by requiring compliance with Division 3 of Part 3 for radio and television broadcasts. The exceptions benefit certain communicators: graffiti artists, skywriters, and those distributing media releases or envelopes with identifying particulars are exempt from the full authorisation requirements. For referendum matter only, letter and card writers also gain an exception. Small volunteer-run campaigns and individual social media users face compliance costs in ensuring that particulars are "reasonably prominent," legible at the intended reading distance, and placed correctly. The language requirements create a disproportionate compliance burden for communicators targeting non-English-speaking audiences, who must include particulars in both English and the relevant language. This potentially raises costs for multicultural outreach. The instrument does not create any exemption for purely private communications, low-budget campaigns, or incidental political discussion, meaning even a small Facebook post or a single printed flyer falls within scope if it contains electoral matter.

The primary duty is to ensure that any communication containing electoral matter or referendum matter includes the prescribed particulars of the notifying entity. The content of those particulars is defined by the parent Act, not by this instrument; the instrument only governs format, placement, timing, and language. For printed communications published in a journal, the particulars must appear at the end of the communication, except that the printer's name and address may appear elsewhere in the journal. For other printed communications (such as flyers or posters), particulars must appear at the end of the communication. The particulars must be reasonably prominent, legible at the intended reading distance, not placed over complex pictorial or multicoloured backgrounds, in contrasting text, printed in a way that cannot be removed or erased under normal conditions, and must not fade, run, or rub off. For audio-only communications (radio, podcasts, or sound files), the particulars must be announced at the beginning of the communication. For moving visual images with sound (television, video), particulars must be announced and shown at the end. For electronic billboards or electric road signs, particulars must appear at the end. For all other forms of communication, including digital and online formats, the communicator may choose from several options: place particulars at the end of the communication; include a URL or hyperlink at the end leading to a webpage with the particulars; place particulars in the footer of a webpage; or, if the communication uses a social media service and the notifying entity is an individual, place particulars in the "About Us" or "Contact Us" section that is directly linked to the communication. The formatting requirements for non-printed communications are slightly less onerous: the particulars must be reasonably prominent, legible at the intended reading distance, not over complex backgrounds, and in contrasting text, but there is no requirement for permanence or resistance to fading or rubbing off. For radio and television broadcasts under Division 3, the timing requirements are specific: particulars must be announced (and shown for television) at the end of the communication. Language requirements for broadcasts are also specific: if the communication is in one language, particulars must be in that language; if in two or more languages, particulars must be in English. The right of communicators is to rely on the exceptions in Part 2: graffiti, skywriting, media releases with particulars, and envelopes with written particulars are exempt. For referendum matter only, letters or cards with particulars are also exempt.

The instrument itself does not prescribe penalties. Penalties for non-compliance arise under the parent Acts. The instrument is made under subsection 321D(7) of the Electoral Act, and section 321D of that Act creates the underlying obligation to include particulars. Contravening section 321D is an offence under section 321D(4), which carries a penalty of 60 penalty units for an individual or 300 penalty units for a body corporate. As of the 2021-22 financial year, one penalty unit was $222, meaning a fine of up to $13,320 for an individual or $66,600 for a body corporate. The Australian Electoral Commission (AEC) enforces these provisions. The AEC may issue warnings, infringement notices, or refer matters for prosecution. The instrument's specific requirements determine whether a communication complies with the law. For example, if a printed flyer has the particulars printed in a way that fades easily or is placed over a complex background, that communication would not satisfy the instrument's requirements and would therefore fail to meet the legal obligation under section 321D. The formatting and placement rules are mandatory: "must" is used throughout. Non-compliance with the language requirements also results in a communication that does not satisfy the parent Act. For broadcasters under Division 3, the parent Acts (ABC Act, SBS Act, and Broadcasting Services Act) contain their own enforcement mechanisms, including potential directions from ACMA or loss of licence conditions. The instrument does not provide for any defence of reasonable mistake, and it does not carve out exceptions for accidental non-compliance. The onus is on the communicator to ensure that every communication containing electoral or referendum matter meets both the parent Act's requirement to include particulars and this instrument's requirements for how those particulars are presented. The consequences of non-compliance extend beyond penalties: a communication that does not comply is an unlawful communication, which could expose the communicator to legal challenge, adverse media attention, or reputational damage during a campaign.

The instrument operates as a delegated legislative instrument under the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984. It does not replace or override those Acts; it fills in details left to the Commissioner's determination. The instrument's Part 2 exceptions are expressly made "for the purposes of paragraph 321D(7)(a) of the Electoral Act" and paragraph 110C(3)(c) of the Referendum (Machinery Provisions) Act. This means the exceptions are integrated into the statutory scheme: a communication that falls within the graffiti exception, for example, is not subject to the authorisation requirement at all. The instrument's Part 3 requirements are made "for the purposes of paragraph 321D(7)(b) of the Electoral Act" and apply to both electoral and referendum matter. Division 3 of Part 3 explicitly cross-references three broadcasting Acts: the Australian Broadcasting Corporation Act 1983 (subsection 79A(2)), the Broadcasting Services Act 1992 (subclause 4(2) of Schedule 2), and the Special Broadcasting Service Act 1991 (subsection 70A(2)). This means the instrument harmonises the authorisation requirements across different statutory regimes so that the same communication cannot be compliant under one Act and non-compliant under another. The instrument does not interact with state or territory electoral laws, which have their own authorisation requirements. A communicator operating both federally and in a state must comply with both regimes separately. The instrument also does not override defamation law, intellectual property law, or privacy law, which may impose additional obligations on political communicators. The instrument's language requirements may interact with the Racial Discrimination Act 1975, though the source text does not address this directly. The instrument's definition of "social media service" is specific and may not align with definitions used in other Commonwealth legislation, such as the Online Safety Act 2021 or the Privacy Act 1988. This creates potential confusion for entities that must determine which definition applies for which purpose. The instrument repeals the 2018 determination, so the 2021 instrument is the sole source of these requirements from 7 July 2021 onward.

The source text provides the instrument as originally made on 30 June 2021 and commencing 7 July 2021. It states that Schedule 1 repeals the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2018 in full. The source text does not include any subsequent amendments to the 2021 instrument. The commencement table in section 2 notes that the table relates only to the provisions as originally made and will not be amended to deal with any later amendments, meaning the published version may be updated later but the original enactment text is fixed. The instrument replaces the 2018 determination, but the source text does not list the specific changes between the two versions. The 2018 determination was presumably made under the same enabling provision, subsection 321D(7) of the Electoral Act. The authority for the 2021 instrument remains the same provision. The instrument does not contain a sunset clause or review date, so it continues in force until repealed or amended. The Electoral Commissioner has the power to make a new determination at any time, subject to the requirements of the Legislation Act 2003 for tabling, disallowance, and review. No transitional provisions are included in the source text, so the repeal of the 2018 determination is immediate and complete upon commencement of the 2021 instrument. Entities that relied on the 2018 determination must comply with the 2021 instrument from 7 July 2021.

The source text does not name any cases. There is no litigation history included in the instrument or its associated materials. The parent Act, section 321D, has been the subject of some litigation, notably in cases involving the validity of authorisation requirements and their interaction with the implied freedom of political communication under the Constitution. However, the instrument itself is recent and has not generated reported litigation. The earlier 2018 determination may have been challenged, but the source text does not indicate this. The absence of litigation history in the source text does not mean the instrument is uncontroversial; it may simply reflect that challenges are brought against the parent Act rather than the delegated instrument. The High Court's implied freedom of political communication jurisprudence, developed in cases such as Lange v Australian Broadcasting Corporation (1997) and later refined in decisions like Unions NSW v New South Wales (2013, 2019), sets the constitutional framework within which authorisation requirements must operate. A court could potentially find that the instrument's specific formatting or language requirements impermissibly burden political communication, but no such challenge appears in the source text. The instrument includes a broad exception for graffiti and skywriting, which may be a response to constitutional concerns about the reach of authorisation requirements into informal political expression. Similarly, the exception for media releases and envelopes may reflect practical realities of media engagement. The litigation history is therefore inferred rather than explicit: the instrument's exceptions and detailed requirements likely reflect an effort to draft within constitutional limits established by previous case law, even though no case is mentioned.

Several provisions in this instrument are narrower than they first appear. The graffiti exception under section 7(2)(a) and section 8(2)(a) is limited to electoral and referendum matter only; it does not create a general exception to authorisation requirements for all graffiti. The skywriting exception is similarly narrow. The media release exception under sections 7(2)(c) and 8(2)(c) applies only if the media release "contains the name and address of the notifying entity for that media release." If the media release omits the name or address, the exception does not apply, and the full authorisation requirements of the parent Act come into force. The envelope exception under sections 7(2)(d) and 8(2)(e) requires the name and address to be "written on" the envelope. Printed labels or stickers may not satisfy "written on" if challenged. The letter or card exception for referendum matter under section 8(2)(d) applies only if the letter or card contains the name and address of the notifying entity on it; if the letter or card omits this, the exception fails. The social media compliance option for individuals under section 12(2)(d)(iv) is available only if the notifying entity is "an individual." Corporations, partnerships, or other organisations using social media cannot use the "About Us" or "Contact Us" shortcut; they must use one of the other methods. The language requirements under sections 11(4) and 12(4) mandate English in all cases where the communication is only in English or in a non-English language, and English plus at least one language where the communication is in two or more languages. This means a communicator cannot satisfy the language requirement by placing particulars only in a non-English language if the communication itself is only in English. For broadcasts under Division 3, the language requirement is reversed in one respect: if the broadcast is in two or more languages, the particulars must be in English only, not in the other languages. This could create confusion for multilingual broadcasters who might assume they should match the audience's language. The formatting requirements for printed communications under section 11(3)(e) and (f) require that particulars be printed in a way that "cannot be removed or erased under normal conditions or use" and will "not fade, run or rub off." This is a high standard that may be difficult to meet for low-cost print runs or DIY campaign materials. The "reasonably prominent" standard is subjective and may be interpreted differently by the AEC in enforcement. The placement requirement that particulars be "at the end of the communication" for printed non-journal communications means that a flyer with the authorisation details in the middle or at the top does not comply, even if those details are clearly visible.

For any printed communication containing electoral or referendum matter, including flyers, posters, how-to-vote cards, newspaper advertisements, and letters (other than the express exceptions), place the required particulars at the end of the communication. For communications published in a journal, the printer's name and address may appear elsewhere, but all other particulars must be at the end. Ensure the particulars are reasonably prominent, legible at the intended reading distance, not placed over complex pictorial or multicoloured backgrounds, in text contrasting with the background, and printed in a way that cannot be removed, erased, faded, or rubbed off under normal conditions. Use a clear sans-serif font at a size proportionate to the overall communication. For audio-only communications such as radio advertisements, podcasts, or sound files broadcast during an election period, announce the required particulars at the very beginning of the communication. For television or video communications, announce and show the particulars at the end of the communication. For electronic billboards or electric road signs, display the particulars at the end of the communication sequence. For all other digital communications, including websites, emails, and digital advertisements, choose one of the following methods: place the particulars at the end of the communication; include a URL or hyperlink at the end that leads to a webpage containing the particulars; place the particulars in the footer of the webpage; or, if the communication is on a social media service and the notifying entity is an individual, place the particulars in the "About Us" or "Contact Us" section that is directly linked to the communication. Ensure that any hyperlink or URL is functional and leads directly to the page containing the particulars. For all non-printed communications, ensure the particulars are reasonably prominent, legible at the intended reading distance, not over complex backgrounds, and in contrasting text. For radio broadcasts (including those by ABC and SBS), announce the particulars at the end of the communication. For television broadcasts (including ABC, SBS, and commercial channels under the Broadcasting Services Act), announce and show the particulars at the end of the communication. For broadcasts in one language only, announce or display the particulars in that same language. For broadcasts in two or more languages, announce or display the particulars in English only. Review the exceptions in Part 2: graffiti, skywriting, media releases containing the notifying entity's name and address, and envelopes with the name and address written on them are exempt. For referendum matter only, letters or cards with the name and address are also exempt. Do not rely on any exception beyond those specifically listed. Maintain records of all communications and the placement of particulars. If using a printer, ensure the printing contract specifies compliance with the permanence requirements of section 11(3). Train campaign staff and volunteers on the specific placement, formatting, and language rules. Seek legal advice for any non-standard communication format not explicitly addressed by the instrument, such as augmented reality, in-game advertisements, or emerging social media platforms. Given that the instrument replaces the 2018 determination, verify that any materials designed before 7 July 2021 are reviewed for compliance with the 2021 requirements, particularly any changes that may have been introduced (though the source text does not specify those changes). Compliance is best achieved by building the authorisation particulars into the design template of every communication rather than adding them afterwards.