This section explains the rules in the Electoral Act 1993, including the promoter statement and authorisation requirements, and the definition of election advertisement.
When do the election advertising rules apply to MPs?
The rules relating to candidate election advertisements only apply from the point you publicly announce your intention to stand as an electorate candidate at the election.
By contrast, party election advertising rules can apply to material published at any time by MPs during the parliamentary term.
There are special rules that apply to election advertising promoted by list only MPs and MPs not seeking re-election, which are explained at the end of this section.
All election advertisements, irrespective of when they are published, must include a promoter statement setting out the promoter’s name and address. [See section 204F of the Electoral Act]
A promoter is the person initiating the advertisement.
MPs promoting an election advertisement need to include either their residential street address or the address of any other place where they can usually be contacted during business hours. This can be your parliamentary or out-of-Parliament office address. A Post Office box or website address is insufficient.
The promoter statement must be clearly displayed in the advertisement. To avoid complaints, the following format for promoter statements is recommended:
Promoted/Authorised by [MP’s name], [MP’s relevant full street address].
Failing to include a promoter statement on an election advertisement is an offence. The Electoral Commission’s advice is that if you are not sure, err on the side of caution, and put in a promoter statement.
Putting a promoter statement in will not change the advertisement’s status.
Election advertisements initiated by you at any time that promote the party and/or another candidate must have the prior written authorisation of the party secretary and/or the other candidate.
Likewise, if the party, another candidate or a third party initiates election advertising that promotes you as an electorate candidate they must obtain your prior written authorisation.
There are two reasons for these requirements:
- it provides candidates and parties a power of veto over who is able to promote them through election advertising, and
- if candidates and parties are being promoted by another person in advertisements published during the regulated period the costs will count as election expenses.
If your party is responsible for initiating election advertising promoting you as a candidate you can give the party secretary written authorisation for multiple publications.
What is an election advertisement?
Not all material featuring an MP, who is a candidate, or the party will be an election advertisement.
An election advertisement is an advertisement in any medium that may reasonably be regarded as encouraging or persuading voters to:
- vote, or not to vote, for a electorate candidate (whether or not the name of the candidate is stated)
- vote, or not to vote, for a party (whether or not the name of the party is stated)
- vote, or not to vote, for a type of candidate or party described by reference to views or positions that are, or are not, held or taken (whether or not the name of the candidate or party are stated). [See section 3A of the Electoral Act]
The Electoral Act does not define ‘advertisement’ but, because the definition of ‘election advertisement’ covers an advertisement ‘in any medium’, the Electoral Commission considers that the term ‘advertisement’ should be interpreted broadly. For example, it is not limited to traditional forms of advertising such as newspapers, posters, billboards, leaflets and radio and television broadcasting. It includes online advertising and can be paid or unpaid. The test is whether the advertisement can ‘reasonably’ be regarded as encouraging or persuading voters to vote, or not to vote, for a party or candidate.
This is an objective test to be determined considering the effect of the advertisement as a whole. The effect of the advertisement will depend not only on its content, but also on its style and apparent purpose, and factual context. To be an election advertisement, the advertisement need not include the name of a party or candidate, and the encouragement or persuasion to vote, or not to vote, can be direct or indirect.
The courts have said the assessment is to be made from the perspective of a reasonable observer, sensitive to the exceptionally high value of political speech in a democracy. (The Electoral Commission v Watson and Anor 2016)
Apart from the contact information exemption, the Electoral Act 1993 does not provide any exemption for MP communications. Under the Electoral Act all candidates are subject to the same rules in the election campaign.
Election advertisement exemptions
The legislation makes it clear that the following are not election advertisements:
- editorial content
- personal political views online
- a member of Parliament’s contact details.
There is an exemption for the editorial content of a periodical, radio or television programme, or news media internet site. A periodical is a newspaper, magazine, or trade or professional journal that was established for purposes unrelated to the election, published at regular intervals and generally available to members of the public.
This does not cover an MP’s newsletter, even if it has been put out regularly, because the definition of periodical is limited to magazines, newspapers or trade or professional journals.
If you have been asked to write a column in your local paper, this is exempt. Whatever you write will fall within the exemption for editorial content chosen by the editor. The exemption covers everything in a newspaper except advertising and advertorial. However, care should be taken if you are offered a column as part of an advertising package as this will not come within the exemption.
Press releases from an MP are not exempt. If the news media pick up your press release then they will be exempt under the exemption for editorial content of a periodical, but this does not cover your release of the item.
Personal political views online
There is an exemption for the publication of personal political views by an individual on the internet or other electronic medium, provided the individual does not make or receive payment for publishing those views.
This exemption will not cover party websites and party press releases because these are not the personal political views of an individual.
Whether or not the exemption will cover an MP’s website, online press release, and social media pages depends on whether the content is the expression of personal political views by an individual, as opposed to a party view, which will need to be determined on a case by case basis. More information on use of social media and websites is provided in Part 2 of this handbook.
MP contact details
There is a specific exemption for publishing your contact information, for example, your electorate office and vehicle signage, or the ads in newspapers advertising your availability to meet with constituents.
This exemption is tightly defined. For the exemption to apply, the contact information must include:
- your name
- contact details, and
- your electoral district or the fact that you are a list member.
The contact information may also include your photo, party name, party logo, website address for the party and your constituency clinic times.
For the exemption to apply there are other requirements that relate to how it is published. The contact information must:
- be published by you in the course of performing your duties as an MP
- have been funded by the Parliamentary Service
- have been routinely published in the same medium, in the same form and style, no more often and to no greater extent than it was published before the regulated period, and
- not be combined or associated with an election advertisement.
To fit within the exemption the proposed publication cannot go beyond the list of allowed content. For example, a leaflet containing contact information and also instructions on how constituents can sign up for your newsletter takes the newsletter outside the exemption and back into the general test of whether it is an election advertisement.
MP office and vehicle signage
All fixed signage on an out-of-Parliament office must be treated as a single sign for the purposes of determining whether signage is contact information. Similarly, all signage on an MP’s vehicle must be treated as a single sign when considering the contact information exemption.
Where the contact information exemption does not apply, the Commission’s approach to signage on vehicles is to consider all sides of the same vehicle as one sign - so for vehicle signage that is an election advertisement only one promoter statement is required.
Where the contact information exemption does not apply to MP office signage, the Commission will assess on a case by case basis whether the advertising displayed consists of one or more advertisements. If the signage is considered to be one advertisement and it contains content that is an election advertisement only one promoter statement will be required on the signage.
Other parliamentary publicity
If you have announced your intention to stand as an electorate candidate you need to consider whether parliamentary publications or signage, other than material covered by the contact information exemption, may reasonably be regarded as encouraging or persuading voters to vote for you.
All MPs, even those not seeking re-election, need to consider whether parliamentary publicity may reasonably be regarded as encouraging or persuading voters to vote, or not to vote, for a party.
Care needs to be taken to ensure that election advertisements published at any time are appropriately authorised and contain the required promoter statement. Candidate election expenses can only be incurred by or with the authorisation of the candidate and party election expenses can only be incurred by or with the authorisation of the party secretary.
Whether parliamentary publicity is candidate advertising must be determined on a case by case basis by looking at the advertisement as a whole.
At one end of the spectrum, advertising expressly seeking support for a candidate is covered by the definition of candidate advertisement. At the other, advertising an MP’s contact details or a factual account of activities and events in the electorate are unlikely to be considered to be candidate advertisements.
When considering a particular item of publicity, the following are some of the factors which indicate that it may be an election advertisement:
- references that directly or indirectly evaluate you and/or your party’s effectiveness or success during the parliamentary term or previously, whether or not referenced to any other party or candidate
- references in the communication to the election itself
- references, direct or indirect, to you and/or your party’s policy platform for the election, or what you will do if elected or re-elected
- references to a candidate who is not an existing MP
- formatting or branding of a communication in a manner similar to the party’s election campaign material.
Requesting an advisory opinion from the Electoral Commission
We are very happy to provide guidance to MPs. You can ask us for advice on whether, in the Commission’s opinion, an advertisement constitutes an ‘election advertisement’ under the law. The opinion of the Commission is not legally binding but reflects the Commission’s interpretation of the law. A court of law may reach a different view and you may wish to seek your own legal advice.
To request an advisory opinion, please provide a copy of the advertisement and any relevant background information about the context of publication, such as the details of when and how it is to be published and on what scale. Requests can be made by email to email@example.com.
It may be helpful to obtain the view of the Commission where you are uncertain about how the rules apply to a particular advertisement. We will respond as soon as we can. We have a maximum target turnaround of 5 working days.
The Commission will treat the proposed advertisement, any supporting material, and the advice given to the requestor as confidential until the day after the date for the return of the writ for the election (13 October 2017).
Advisory opinions will then be available on request, subject to the Official Information Act 1982. This does not prohibit the requestor from releasing the advice at any time.
List only candidates and MPs not seeking re-election
If you are standing as a list only candidate you can promote election advertisements as a third party promoter up until the time the party list is lodged by the party secretary with the Commission (the deadline for lodgement of the party list is noon, 28 August 2017). List only candidates cannot promote election advertisements from the date the party list is lodged.
If you are not standing for re-election you can promote advertising as a third party promoter. You can only spend up to $12,600 on election advertising published during the regulated period unless you register as a registered promoter with the Commission. More information about the third party rules can be found in the Third Party Handbook - General Election 2017.