Broadcasting and communication of political and election matter

Background

The Australian Communications and Media Authority (the ACMA) regulates the broadcasting by licensed broadcasters of political and election matter and the content of electronic communications.

This fact sheet provides general background information for broadcasters, political parties and election candidates, advertisers and the general public about the different media and the rules administered by the ACMA that apply to the communication of political and election matters, including specific conditions that apply during election periods.

Television and radio

Parts 1 and 2 of Schedule 2 to the Broadcasting Services Act 1992 (BSA) contain provisions that deal with access, timing and identification regarding the broadcast of political and election matter. Election matter, political matter and election period are each defined in Clause 1 of Schedule 2 to the BSA.

The rules set out in Parts 1 and 2 of Schedule 2 to the BSA are licence conditions that apply to commercial television broadcasting licensees, commercial radio broadcasting licensees, community broadcasting licensees, subscription television broadcasting licensees and persons providing broadcasting services under class licences (these include subscription and open narrowcasting services).

The national broadcasters—SBS and the ABC—have separate requirements under their respective statutes.

Access for all parties

Clause 3 of Schedule 2 to the BSA requires that if any election matter is broadcast by a broadcaster during an election period, then that broadcaster must give all parties contesting the election a reasonable opportunity to have election matter broadcast during the election period. The broadcaster is not required to broadcast material for free.

Blackout period for election advertising

Clause 3A of Schedule 2 to the BSA requires that a broadcaster must not broadcast an election advertisement from the end of the Wednesday before the polling day until the close of the poll on polling day, where an election is to be held in an area which relates to a licence area, or an area where a broadcast can normally be received.

Identifying certain political matter

Subclause 4(2) of Schedule 2 to the BSA requires that, when broadcasting political matter at the request of another person, a broadcaster must cause the announcement of certain particulars in a form approved by the ACMA.

The following is the approved form for the announcement of the required particulars, as defined in Clause 1 of Schedule 2 of the BSA:

1. If the political matter is broadcast by radio, the broadcaster shall cause the required particulars to be broadcast in the form of a spoken announcement.
2. If the political matter is broadcast by television, the broadcaster shall cause the required particulars (other than those contained in paragraph (c) of the definition of required particulars in Clause 1 of Schedule 2) to be broadcast in the form of a spoken announcement, and cause all the required particulars to be broadcast in the form of images of words.
3. In both cases, the required particulars must be broadcast in the same language as the political matter.

The announcement must include details of the person authorising the political matter. A person authorises the broadcast only if they are responsible for the approval of its content and the decision to present it for broadcasting.

This condition applies irrespective of whether the broadcast occurs within an election period.

The particulars required to be broadcast about political matter are defined in Clause 1 of Schedule 2 to the BSA as:

1. if the broadcasting was authorised by a political party:
   1. the name of the political party;
   2. the town, city or suburb in which the principal office of the political party is situated; and
   3. the name of the natural person responsible for giving effect to the authorisation; and
2. if the broadcasting of the political matter was authorised by a person other than a political party:
   1. the name of the person who authorised the broadcasting of the political matter; and
   2. the town, city or suburb in which the person lives or, if the person is a corporation or association, in which the principal office is situated; and
3. the name of every speaker who, either in person or by means of a sound recording device, delivers an address or makes a statement that forms part of that matter.

Keeping records of political matter broadcast at the request of another person

Subclause 4(3) of Schedule 2 to the BSA requires that a broadcaster must keep, for the required period, a record of the name, address and occupation of the person (or the name and address of the principal office, if the person is a company) that requests the broadcast of political matter. The required period is the longer of six weeks from the date of the broadcast or until the day on which the election ends (if the matter relates to an election or referendum and was broadcast during the relevant election period). The ACMA can direct a broadcaster to keep records for a longer period.

These records must be given to the ACMA if requested by written notice.

Records relating to broadcast of a political subject or current affairs

Subclauses 5(2), (3), (6) and (8) of Schedule 2 to the BSA require that, if a broadcaster broadcasts matter that is in the form of news, an address, a statement, a commentary or discussion, and that matter relates to a political subject or current affairs, then the broadcaster must make a record of the matter in a form approved by the ACMA. The record must be kept for six weeks from the date of broadcast, or 60 days from the date of broadcast, if a complaint has been made. The ACMA can direct a broadcaster in writing to retain a record for a longer period in particular circumstances. A broadcaster must make the record available to the ACMA at no charge.

This condition applies irrespective of whether the broadcast occurs within an election period.

Disclosure of commercial agreements that have the potential to affect current affairs program content on radio

The Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2012 (disclosure standard) applies to all commercial radio broadcasting licensees and requires:

• on-air disclosure during current affairs programs of certain commercial agreements between sponsors and presenters or licensees that have the potential to affect the content of those programs
• on-air disclosure during current affairs programs of the payment of, or contribution to, production costs by advertisers and sponsors:
  • licensees to keep a public online register of certain commercial agreements relevant to their current affairs programs
  • licensees to ensure that a condition of employment of current affairs program presenters is that they comply with the relevant obligations imposed by the BSA, the codes of practice for commercial radio and the disclosure standard.

Compliance with the disclosure standard is a licence condition (see subclause 8(1)(b) of Schedule 2 to the BSA).

This condition applies irrespective of whether the broadcast occurs within an election period.

Extra advertisements on free-to-air commercial television

Section 5 of the Commercial Television Industry Code of Practice 2010 (the code) sets limits for non-program matter scheduled by free-to-air television licensees.

Under clause 5.11 of the code, where a licensee, for no charge, broadcasts a political debate between leaders of political parties at any time or a policy speech during an election period, then the non-program matter that has been displaced may be transferred to another time within 14 days of the shortfall (to a maximum of one minute in any one hour).

Extra advertisements are allowed on free-to-air commercial television during an election period. Clauses 5.7.2 and 5.7.4 of the code provide that commercial free-to-air networks are allowed to broadcast an additional minute of non-program matter but the additional minute must comprise political matter. Under Clause 5.8 of the code, licensees must provide Free TV with an hourly summary of political advertising, and other non-program matter in which the additional minute has been utilised.

Complaints

Complaints about compliance with licence conditions or the provisions of the BSA can be made directly to the ACMA. The ACMA must investigate any complaint received, unless the complaint is frivolous or vexatious, or not made in good faith.

Complaints about compliance with broadcasting codes (such as the Commercial Television Code of Practice) must be directed to the broadcaster in the first instance. The ACMA ordinarily responds to such complaints only when the complainant has not received a response from the broadcaster within 60 days of making the complaint or when the complainant is not satisfied with the response from the broadcaster and complains in writing to the ACMA.

Enforcement

If a licence condition in relation to political or election matter is breached, the ACMA may take enforcement action, including the issue of remedial directions, or the acceptance of enforceable undertakings.

If a provision of a broadcasting code is breached, the ACMA may take enforcement action including the acceptance of enforceable undertakings, or the imposition of an additional licence condition.

Electronic messages

Under the Spam Act 2003, there is a prohibition on sending, or causing to be sent, ‘unsolicited commercial electronic messages’ that have an Australian link. Electronic messages include email, SMS or text messages, MMS and instant messaging.

Some types of electronic commercial messages are exempt, or partially exempt, from this prohibition, including certain messages from registered political parties. Purely factual messages with no commercial content whatsoever are also partially exempt. However, in both cases, the identity and contact details of the entity that authorised the sending of the message must be included.

These rules apply at all times.

Additional information about the Spam Act may be found at www.spam.acma.gov.au.

Telemarketing and research calls

The Do Not Call Register Act 2006 (DNCR Act) provides that unsolicited telemarketing calls may not be made to an Australian number listed on the Do Not Call Register. There are exemptions including for some calls made by:

• registered political parties
• independent members of parliament
• political candidates.

However, even calls made by registered political parties, independent members of parliament and political candidates must comply with the Telemarketing and Research Calls Industry Standard 2007 (TRCIS).

The TRCIS contains rules about when and how research and telemarketing calls may be made, Importantly, such calls may not be made during the times set out below (unless the recipient has consented to being called at that time).

These calling-time restrictions apply to all Australian numbers, not just to those listed on the Do Not Call Register.

Fax marketing calls

The DNCR Act provides that unsolicited fax marketing calls may not be made to an Australian number listed on the Do Not Call Register.

Again, there are exemptions, including for some types of fax marketing calls made by:

• registered political parties
• independent members of parliament
• political candidates.

The Fax Marketing Industry Standard 2011 (FMIS) contains rules about when and how fax marketers may contact people. Importantly, it states that faxes must not be sent during the times set out below (unless the recipient has consented to being faxed at that time).

The FMIS covers all marketing faxes, including those sent to numbers listed on the Do Not Call Register.

Additional information about the DNCR Act, the TRCIS and the FMIS may be found at donotcall.gov.au.

ACMA Responsibilities

While the ACMA has various responsibilities, as highlighted in this fact sheet, it is not responsible for:

• making or administering rules about the authorisation of election advertisements—this is regulated by the Australian Electoral Commission and relevant state legislation
• election or political matter appearing on the internet (unless that material is prohibited content, potential prohibited content or unsolicited commercial electronic messaging)
• determining whether an election or political advertisement is misleading or untrue
• dealing with complaints about false or defamatory statements about the personal character or conduct of a candidate
• investigating complaints that the national broadcasters—SBS and the ABC—have breached any political matter or election-specific requirements under their respective statutes.

Please note: this document is intended as a guide only and should not be relied on as legal advice or regarded as a substitute for legal advice in individual cases.