The key definition that sets the scope of the regulatory regime is the definition of election advertisement.
Election advertisement is defined as an advertisement in any medium that may reasonably be regarded as encouraging or persuading voters to vote or not vote:
- for a candidate or party, or
- a type of party or candidate described or indicated by reference to views or positions that are, or are not, held or taken (for example, vote for parties that support lowering the drinking age).
For the purposes of the election advertising rules, a ‘candidate’ is a constituency candidate. A person becomes a constituency candidate from the point that he or she has declared his or her intention of becoming a constituency candidate, which is a question of fact. Once you have made your candidacy publicly known you need to consider whether what you are putting out could be regarded as candidate advertising. Even before your candidacy is announced you need to consider whether any publicity you are doing could be a party advertisement.
Because the definition of election advertisement covers an advertisement in any medium it is not limited to traditional forms of advertising such as newspapers, posters, billboards, leaflets and radio and TV broadcasting. It also applies to other things such as websites, letters and signage.
The test of whether something is an election advertisement is an objective test. It does not depend on the promoter’s purpose. It is based on content and context regardless of whether the advertisement includes the name of a party or candidate, or whether the encouragement or persuasion to vote, or not to vote, is direct or indirect.
Apart from the contact information exemption, the Electoral Act 1993 does not provide any exemption for MP communications. The philosophy behind it is that all candidates are subject to the same rules in the election campaign.