Part 2: Election broadcasting

This section helps media understand the rules in the Broadcasting Act 1989 that apply to election campaigning on television and radio.

Key messages

Election programmes can only be broadcast on radio and tv from writ day (23 August) to midnight on the day before election day (22 September) (excluding 6am to noon on Sundays) - ‘the election period’.
It is unlawful to broadcast an election programme prior to writ day or on election day.
Registered political parties can only use funds allocated by the Electoral Commission to buy time to promote the party on radio or tv – though they can use their own funds for production costs.
Broadcasters are required to offer the same rate card and terms to all parties and the same rate card and terms to all candidates (including any volume discounts and bonus allocations).
Candidates can promote themselves on radio or tv during the election period, within their candidate election expense limit, provided the broadcast only features one candidate, does not promote the party vote, and does not attack other parties or candidates.
Parties can use their allocation to promote candidates but candidate expense limits and donations rules apply.
Changes have been made for 2017 to remove free time for opening and closing addresses, increase the amount of money available for allocation by the Commission, enable parties to use their allocations on the internet, and remove the requirement for broadcasters to file a return with the Commission after the election.

What is an election programme?

An ‘election programme’ is “a programme that—

(a) encourages or persuades, or appears to encourage or persuade voters to vote for a party or the election of a constituency candidate; or

(b) encourages or persuades, or appears to encourage or persuade voters not to vote for a party or the election of a constituency candidate; or

(c) advocates support for a constituency candidate or for a party; or

(d) opposes a constituency candidate or a political party; or

(e) notifies meetings held or to be held in connection with an election.”

It includes “visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text.”

Election programmes may include:

  • advertisements initiated by parties or candidates
  • positive and negative messages by or on behalf of a political party or candidate, e.g., ‘Vote for X’ and ‘Don’t vote for Y’ (but candidates may not run negative advertising)
  • advertisements of election meetings by or for a political party or candidate.

The courts have held that the election programme rules in the Broadcasting Act only apply to broadcasts for political parties or candidates and do not apply to broadcasts initiated by third parties or selected by a broadcaster, for example, editorial content, news, comment, current affairs, entertainment, documentaries, etc. (The Electoral Commission v Watson & Anor 2016)

Broadcasting covers radio and television, including Pay TV such as Sky, but not other subscription or transaction on-demand online services. A broadcaster is someone who broadcasts programmes, but does not include a transmission service supplier unless they have some control over what is broadcast. The broadcaster will generally be a station or network manager.

Broadcasting allocation

Registered parties can apply to the Commission for consideration for an allocation of funds to spend on election advertising on radio or television. The allocation for the 2017 general election is $3,605,000 (plus GST).

There is no allocation for a by-election, nor directly to electorate candidates.

It is illegal for a party to spend its own funds buying radio or television time to promote the party.

A party can choose to use the allocation on production costs for television and radio advertising.

The allocation can also be used to produce internet advertisements that are published both before and during ‘the election period’ and to place or promote internet advertisements during the election period. Where the party uses its own funds for production costs on internet advertising published during the regulated period, these are election expenses for the purposes of the party expenditure limit. If the allocation is used for production or placement costs it does not count towards the party’s expenditure limit but has to be reported by the party in the party’s return of allocation expenses.

An election broadcast or internet ad promoting an electorate candidate may be funded from a party’s broadcasting allocation or the candidate’s own campaign funds (within the candidate’s $26,200 election expense limit).

Unregistered parties, and registered parties not allocated funds under Part 6 of the Broadcasting Act, may only use radio and television to promote their constituency candidates. The table below illustrates how the broadcasting allocation can be used.

How can the broadcasting allocation be used?

Type of advertising Production costs Placement costs Timing Election Expenses
Radio and television advertising Parties can use the broadcasting allocation or use their own funds in whole or in part for production costs. Placement costs must be paid for out of the allocation. Parties cannot spend their own funds on placement. Advertising promoting parties and candidates can only be broadcast during the election period. 

Production and placement costs funded from the allocation are not party election expenses.

If parties use their own funds for any production costs these will be an election expense.

If parties use the allocation to promote a candidate, then the cost (or the portion of the ad relating to the candidate) is both a candidate expense and a donation by the party to the candidate.

Internet Advertising The broadcasting allocation can only be used for production costs if the advertisement is published during the election period or both before and during the election period.

The allocation can only fund placement costs during the election period.

Parties can spend their own funds for placement costs before and during the election period.

Advertising promoting parties and candidates can be published at any time online – but use of the allocation for production and placement costs online is restricted as indicated.

Production and placement costs funded from the allocation are not party election expenses.

If parties use their own funds for production and placement, and if published during the regulated period, these costs will be an election expense.

If parties use the allocation to promote a candidate, the cost (or the portion of the ad relating to the candidate) is both a candidate expense and a donation by the party to the candidate.

Party election programmes

Registered parties’ election programmes can only be broadcast during the election period (23 August to 22 September), excluding Sundays from 6am to noon and may advocate for or against a party and can attack a candidate. Registered parties may also advocate for an electorate candidate, with the candidate’s written authority.

A programme may meet the test of being an election programme even if there is no explicit voting message.

Example:
If a party enters into a sponsorship agreement with a broadcaster for a sporting event the sponsorship statement may be an election programme because it ‘appears to encourage or persuade voters to vote for the party’.

Candidate election programmes

Electorate candidates’ election programmes can only be broadcast during the election period (23 August to 22 September) excluding Sundays from 6am to noon and must only promote a candidate’s own election. Although the party name and policies may be mentioned, the candidate must not encourage the party vote or promote the party list. Candidates cannot run advertising that attacks other parties or candidates, or their policies. All advertising must be paid for (although an advertising schedule may contain bonus airtime contingent on a spend level).

A candidate may pay to broadcast election programmes or to publish advertisements on the internet promoting his or her candidacy or their party may fund it from its broadcasting allocation within the candidate’s campaign expense limit.

A candidate cannot share their radio or television advertising with another candidate (unlike nonbroadcast advertising).

Other election-related promoters

Third party promoters (individuals or organisations other than candidates and parties) can undertake election broadcasting at any time except on election day. However, if the advertising is an election advertisement the third party expenditure limits will apply during the regulated period. The promoter statement and authorisation requirements apply to election advertising at all times (see Part 1). Any advertising is also subject to the ASA codes (see Part 5).

Non-partisan, community service, station announcements (e.g., free listings of candidate meetings, encouragement to enrol or vote) may be broadcast, but must contain a promoter statement.

Example: Broadcast ad
If an animal welfare group wanted to place this tv advertisement it would be lawful for them to do so at any time except election day.

It contains a promoter statement.

The group would need to register to spend more than $12,600 during the regulated period and the overall expenditure limit for a registered promoter of $315,000 during the regulated period would apply.

Broadcaster requirements

Broadcasters are responsible for ensuring any election programmes are within the law and comply with broadcasting standards. Election programmes may only be broadcast during the election period.

Election programmes are prohibited on television between 6am and noon on Sundays.

There is no restriction on when broadcasters may begin to accept bookings for candidate and party election programmes, but broadcasters should check that any bookings made by parties are within the amount and any conditions of the broadcasting allocation under Part 6 of the Broadcasting Act. Bookings should record clearly whether it is for a party or a (named) electorate candidate.

By law, the same rate card and terms (including any volume discounts and bonus allocation) must be offered to all parties and the same rate card and terms (including any volume discounts and bonus allocation) must be offered to all candidates. Party (not candidate) election programmes are eligible for Government Volume Incentive Discount.

Editorial content - news, comment and current affairs

As the courts have held that the election programme restrictions only apply to party and candidate programmes, broadcasters are not restricted in any way from broadcasting any and all editorial content, third party comment or opinion in relation to an election, e.g. news, comment, current affairs, entertainment, documentaries, etc.

The content of the programmes will be subject to the broadcasting standards for radio, Free-to-Air and Pay TV, administered by the Broadcasting Standards Authority (BSA).

Example:
A local radio station hosts a candidate to talk about issues of local interest in the week before the election with the broadcaster’s brief about the general programme format.

After talking about the issues and the election and the importance of voting the candidate says: “Make sure you go to vote next Saturday and vote for me.”

This would not be a breach of Part 6, but it would fall within the jurisdiction of the BSA and general broadcasting standards.

There is no legal requirement for an on-air employee of a broadcaster to stop presenting their programme during the election campaign just because they are an election candidate. However, great care will need to be taken in how such employees engage on issues of the day that might be relevant to the election.

Broadcasters and their employees should use their own judgement taking into account ethical, legal and employment considerations and broadcasting standards. If a candidate plans to continue in his or her broadcasting role during his or her candidacy, broadcasting standards will apply and he or she can expect to be the subject of careful public scrutiny.

Party broadcasting allocation returns

A law change means that broadcasters are no longer required to file broadcasting returns with the Commission within 10 working days after the end of the month in which an election is held. Instead, there will be a requirement on parties to file a return of all broadcasting allocation expenses with the Commission within 90 days of election day.

Offences

Under the Broadcasting Act a broadcaster may be liable for the following offences which are subject to a maximum fine of $100,000:

  • broadcasting an election programme of a type that is not permitted, or which is broadcast outside the election period (section 70)
  • broadcasting an election programme outside permitted days or hours (section 71)
  • not offering or giving identical terms of business to all parties (section 72)
  • not offering or giving identical terms of business to all candidates (section 72)
  • arranging for the broadcast of, or to broadcast on behalf of a political party, any programme or advertisement other than those meeting the requirements of Part 6 of the Broadcasting Act (section 80G).
Last updated: 30 March 2017