Election and political, including marriage law survey, matter guidelines | ACMA

Election and political, including marriage law survey, matter guidelines

When a Federal, State, Territory or local council election has been called, or if the Government holds a Constitutional referendum or plebiscite, you might receive campaign calls, emails or SMS messages from political parties, independent members of parliament, candidates for election, or interest groups seeking to influence your voting behaviour or promote a particular political party, candidate or issue. You will also see and hear political advertising, including marriage law survey matter and content broadcast on radio and television.

This page has 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, including marriage law survey 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 contain provisions that deal with access, timing and identification in relation to the broadcast of political, including marriage law survey and election matter. Election matter, political matter and election period are all defined in clause 1 of Schedule 2 to the Broadcasting Services Act.

The rules set out at Parts 1 and 2 of Schedule 2 to the Broadcasting Services Act 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).

Section 10 of the Marriage Law Survey (Additional Safeguards) Act 2017, applies the rules set out at Parts 1 and 2 of Schedule 2 to the Broadcasting Services Act regarding ‘political matter’ to ’marriage law survey matter’ for the purposes of the survey during the Limitation Period.

Marriage law survey matter is defined broadly to capture various types of communications, including:

  • matter commenting on same-sex marriage, the marriage law survey process or the marriage law survey question (other than matter printed or published by the Statistician);

  • matter stating or indicating the marriage law survey question (other than matter printed or published by the Statistician); and

  • matter referring to a meeting held or to be held in connection with same-sex marriage, the marriage law survey process or the marriage law survey question.

The Limitation Period commences on 14 September 2017 and ends on the earlier of 15 November 2017 or the date statistical information is published for the purposes of the Census and Statistics (Statistical Information) Direction 2017.

Access for all parties

Clause 3 of Schedule 2 to the Broadcasting Services Act requires that if any election matter is broadcast during an election period by a broadcaster, then that broadcaster must give all political parties contesting the election a reasonable opportunity to have election matter broadcast during the election period provided that they were represented in the relevant Parliament at the time it last met before the election period.

Section 11 of the Marriage Law Survey (Additional Safeguards) Act 2017, applies the rules set out at Clause 3 of Schedule 2 to the Broadcasting Services Act to ‘marriage law survey matter’ for the purposes of the survey during the Limitation Period.

Note that these rules do not apply to:

  • community radio broadcasters operating under licences focussed on broadcasting to religious or gay and lesbian groups; or

  • subscription broadcasting and narrowcasting class licence holders whose broadcasting is focussed to religious community interests or gay or community interests that includes gay and lesbian community interests.

Blackout period for election advertising

Clause 3A of Schedule 2 to the Broadcasting Services Act 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. This only applies for elections to a Parliament.

The election advertising blackout applies to broadcasters, including:

  • commercial television broadcasting licensees

  • commercial radio broadcasting licensees

  • community broadcasting licensees

  • subscription television broadcasting licensees

  • providers of broadcasting services under class licences.

The election advertising blackout only applies to broadcasters. It does not include online services and print media.

Identifying certain political, including marriage law survey, matter

Subclause 4(2) of Schedule 2 to the Broadcasting Services Act and section 10 of the Marriage Law Survey (Additional Safeguards) Act 2017   require that, when broadcasting political, including marriage law survey, 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 announcement of the required particulars, as defined in clause 1 of Schedule 2 of the Broadcasting Services Act:

  • if the political, including marriage law survey, matter is broadcast by radio, the broadcaster shall cause the required particulars to be broadcast in the form of a spoken announcement

  • if the political, including marriage law survey, 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 or words

  • in all cases, the required particulars must be broadcast in the same language as the political, including marriage law survey, matter.

The announcement must include details of the person authorising the political, including marriage law survey, 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 at all times.

The particulars required to be broadcast about political, including marriage law survey, matter are defined in Clause 1 of Schedule 2 to the Broadcasting Services Act 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, including marriage law survey, matter was authorised by a person other than a political party:
    1. the name of the person who authorised the broadcasting of the political, including marriage law survey, 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, including marriage law survey, matter broadcast at the request of another person

Subclause 4(3) of Schedule 2 to the Broadcasting Services Act and section 10 of the Marriage Law Survey (Additional Safeguards) Act 2017 require 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, including marriage law survey, 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 (in writing) to keep records for a longer period. The record keeping requirements only apply to marriage law survey matter if the matter is broadcast during the Limitation 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 Broadcasting Services Act and section 10 of the Marriage Law Survey (Additional Safeguards) Act 2017 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, including marriage law survey matter 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, or 60 days if a complaint has been made about the matter. 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.  The record keeping requirements only apply to marriage law survey matter if the matter is broadcast during the Limitation Period.

This condition applies at all times.

Extra advertisements on free-to-air commercial television

Section 12 of the Marriage Law Survey (Additional Safeguards) Act 2017 applies time limit rules for advertising marriage law survey matter on television at various times of the day during the Limitation Period.

On any day in the limitation period for marriage law survey matter, on their main channels, commercial television broadcasters may schedule an average of:

  • 14 minutes per hour of non-Program matter between 6pm and midnight, provided that on average no more than 13 minutes per hour is non-program matter other than marriage law survey matter;

  • 15 minutes per hour of non-Program matter at other times if the hour does not include a news Program; and

  • 16 minutes per hour of non-Program matter at other times, if the hour includes a news Program, provided that on average no more than 15 minutes per hour is non-Program matter other than marriage law survey matter.

Because these limits are ‘averages’, more can be scheduled in any particular hour.  However, the maximum amount of non-Program matter that can be scheduled in any given hour on a commercial television broadcaster’s main channel is:

  • 15 minutes per hour between 6pm and midnight plus an extra one minute for non-Program matter that is marriage law survey matter; and

  • at other times, 16 minutes per hour plus an extra one minute for non-Program matter that is marriage law survey matter and scheduled in a news Program.

In any hour during the limitation period for marriage law survey matter, on their multi-channels, commercial television broadcasters may schedule up to:

  • 15 minutes per hour of non-Program matter plus  an extra one minute for non-Program matter that is marriage law-survey matter, between 6pm and midnight; and

  • 16 minutes per hour of non-Program matter at all other times.

Commercial Television Industry Code of Practice 2015

Under clause 5.5.1 of the Commercial Television Industry Code of Practice 2015, 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. Clause 5.3.3 (b) of the code provides that, between 6.00 pm and midnight during an election period, commercial free-to-air networks are allowed to broadcast an additional minute of non-program matter but the additional minute must comprise political matter and the network must provide a summary of all relevant non-program matter to Free TV Australia for public release.

Complaints

Complaints about compliance with licence conditions or the provisions of the Broadcasting Services Act can be made directly to the ACMA.

Complaints about compliance with Codes (such as the Commercial Television Code of Practice) should be directed to the broadcaster in the first instance. Before directing a code complaint to the ACMA, the complainant should wait for the broadcaster's response. If the broadcaster does not respond within 60 days or if the complainant is not satisfied with the response from the broadcaster, the complainant can then complain in writing to the ACMA.

Enforcement

If a licence condition in relation to political, including marriage law survey, 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 the Commercial Television Code of Practice is breached, the ACMA may take enforcement action including the acceptance of enforceable undertakings, or the imposition of an additional licence condition.

Telemarketing, fax marketing and research calls

Some calls, made in connection with election campaigns, are covered by the Do Not Call rules, others are not.

What type of calls are covered by the rules?

Opinion polling calls and calls from political parties, independent members of parliament, or candidates for election that contain a commercial element—that is, they are trying to sell you something or are seeking donations, are permitted by the Do Not Call rules and may be made even if your number is listed on the Do Not Call Register.

Although the calls are permitted by the legislation, they are subject to rules under the Telemarketing and Research Calls Industry Standard, which establish how and when the calls may be made. You can complain about polling or call from a political party if:

  • the caller does not identify themselves and the organisation that authorised the call
  • the caller does not enable the display of their phone number on your phone
  • the caller does not terminate the call when you ask
  • you receive a call outside the following hours:

 

Opinion polling calls

Calls from political parties

Weekdays

Before 9.00 am or after 8.30 pm

Before 9.00 am or after 8.00 pm

Saturday

Before 9.00 am or after 5.00 pm

Before 9.00 am or after 5.00 pm

Sunday

Before 9.00 am or after 5.00 pm

All day

National public holidays

All day

All day

What type of calls are not covered by the rules?

If the individual calling you is simply providing you with information about a particular issue and they are not trying to sell you something, solicit donations or asking for your opinion, the call is just a phone call and is allowed to be made, even to numbers on the Do Not Call register. The ACMA has no role in regulating calls that are not commercial in nature and is not able to prevent you from receiving the calls, nor can it investigate the caller. If you do not wish to listen to someone talking to you about election issues, you should hang up the phone.

It is not relevant whether calls are made by live operators or use recorded messages.  

Electronic messages

What type of messages are covered by the rules?

In general, the Spam Act prohibits sending emails and SMS messages that offer goods and services for sale or solicit donations, unless you have previously consented to receive the messages.

The Spam Act allows political parties to send commercial emails and SMS messages to individuals as long as the message identifies who authorised the sending of the message. Commercial messages from independent members of parliament or candidates for election are not allowed.

Complaints about emails and SMS messages that contravene the Spam Act may be submitted to the ACMA via its online form or by forwarding the message to the ACMA at report@submit.spam.acma.gov.au or 0429 999 888 for SMS.

ACMA responsibilities

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

  • making or administering rules about the authorisation of electoral 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.

Last updated: 18 September 2017