Legal obligations of the media regarding the Victorian State election, 29 November 2014
The Victorian State election will take place on Saturday 29 November 2014.
The Victorian Electoral Commission (VEC) would like to remind the media of the legislative obligations relating to the State election as set out under the Electoral Act 2002.
There are two main areas of legal provisions — those that operate all the time, and those that operate only during the election period (4 November 2014 to 6.00pm on
29 November 2014).
Provisions that operate all the time:
- Authorisation of electoral advertisements
Electoral advertisements published in a newspaper or on the internet must include the name and address (which cannot be a post office box) of the person who authorised the advertisement, at the end of the advertisement.The definition of electoral advertisement is very wide, and includes an advertisement containing an express or implicit reference to or comment on the election, the Government or Opposition, a member or former member of Parliament, a political party, a candidate or an election issue. - Headings of electoral advertisements
Newspaper proprietors must ensure that all electoral advertisements are headed by the word ‘advertisement’ in font no smaller than 10 point.
Provisions that operate during the election period (4 November 2014 to 6.00pm on 29 November 2014):
- Misleading or deceptive matter
Any material that is likely to mislead or deceive an elector in relation to the casting of the vote of the elector must not be printed, published or distributed.
In law, this has had a narrow interpretation.To date, electoral matter has only been deemed misleading or deceptive under the Act in cases where it has misled a person in relation to how they physically complete or mark their ballot paper, i.e. how they cast their vote.
Representing a ballot paper in a way that might encourage a voter to cast a vote differently to the directions on the actual ballot paper is also not allowed.
- Identification of authors
Newspapers containing an article, report, letter or other matter containing electoral matter must set out the author’s name and address.However, this requirement does not apply to editorials and articles that contain only what speakers said at meetings.Letters only need to include the author’s suburb or locality, not the full address.
An extract from the Electoral Act 2002 is supplied.
In the extract, penalties for offences are expressed in penalty units. At present, the value of one penalty unit is $147.61.
In the lead-up to the State election, the VEC would like to encourage the media’s awareness of its obligations by reading the extract supplied and, where necessary, seeking legal advice on interpretation.
In addition, the media must remain aware of its obligations in regard to all other legislation.
Matter broadcast or televised
The broadcast on radio or television of all political and election matter (including election advertisements) must comply with the requirements set out in Schedule 2 of the Broadcasting Services Act 1992(Commonwealth).
The VEC is not in a position to offer any advice regarding the operation of Commonwealth legislation. Any enquiries concerning the operation of the above Commonwealth Act should be directed to:
The Australian Communications and Media Authority
PO Box 13112 Law Courts
Melbourne Vic 8010.
Tel: 03 9963 6800 / Fax: 03 9963 6899
Media enquiries:
Mary Sammut
Communication Officer
Victorian Electoral Commission
Phone: (03) 8620 1190
Email:
/ twitter.com/electionsvic
/ vec.vic.gov.au
Background
Electoral Act 2002:
s.3.Definitions
In this Act—
address does not include a post-office box;
electoral advertisement, handbill, pamphlet or noticemeans an advertisement, handbill, pamphlet or notice that contains electoral matter, but does not include an advertisement announcing the holding of a meeting;
publishmeans publish by any means including by publication on the Internet;
relevant period, in relation to an election, means the period that—
(a)starts on the day a writ is issued for the election; and
(b)ends at 6 p.m. on election day;
s.4.Electoral matter
(1)in this Act, electoral mattermeans matter which is intended or likely to affect voting in an election.
(2)Without limiting the generality of the definition of electoral matter, matter is to be taken to be intended or likely to affect voting in an election if it contains an express or implicit reference to, or comment on—
(a)the election; or
(b)the Government, the Opposition, a previous Government or a previous Opposition, of the State; or
(c)the Government, the Opposition, a previous Government or a previous Opposition, of the Commonwealth or any other State or a Territory of the Commonwealth; or
(d)a member or a former member of the Parliament or the Parliament of the Commonwealth, any other State or a Territory of the Commonwealth; or
(e)a political party, a branch or division of a political party or a candidate in the election; or
(f)an issue submitted to, or otherwise before, the electors in connection with the election.
Division 6—Electoral Matter
s.83.Printing and publication of electoral advertisements, handbills, pamphlets or
notices
(1)A person must not print, publish or distribute or cause, permit or authorise to be printed, published or distributed, an electoral advertisement, handbill, pamphlet or notice unless—
(a)the name and address of the person who authorised the electoral advertisement, handbill, pamphlet or notice appears at its end; and
(b)in the case of an electoral advertisement, handbill, pamphlet or notice that is printed or published otherwise than in a newspaper, the name and place of business of the printer or publisher appears at its end.
Penalty:In the case of a natural person, 10penalty units;
In the case of a body corporate, 50penalty units.
Note
Section 179A applies to an offence against this subsection.
(2)For the purposes of sub-section (1)(b), a person who makes copies for distribution of an electoral advertisement, handbill, pamphlet or notice that is published on the Internet is deemed to be the printer of those copies.
(3)Sub-section (1) does not apply in relation to—
(a)a car sticker, an item of clothing, lapel button, lapel badge, fridge magnet, pen, pencil or balloon; or
(aa)a letter or card which—
(i)bears the name and address of the sender; and
(ii)does not contain a representation or purported representation of a ballot-paper for use in an election; or
(b)an article included in a prescribed class of articles.
(4)Nothing in subsection (3)(a) or (3)(aa) is to be taken, by implication, to limit the generality of regulations that may be made by virtue of sub-section (3)(b).
s.84.Misleading or deceptive matter
(1)A person must not during the relevant period—
(a)print, publish or distribute; or
(b)cause, permit or authorise to be printed, published or distributed—
any matter or thing that is likely to mislead or deceive an elector in relation to the casting of the vote of the elector.
Penalty:In the case of a natural person, 60penalty units or 6 months imprisonment;
In the case of a body corporate, 300penalty units.
(2)A person must not during the relevant period—
(a)print, publish or distribute; or
(b)cause, permit or authorise to be printed, published or distributed—
an electoral advertisement, handbill, pamphlet or notice that contains a representation or purported representation of a ballot-paper for use in that election that is likely to induce an elector to mark the elector's vote otherwise than in accordance with the directions on the ballot-paper.
Penalty:In the case of a natural person, 60penalty units or 6 months imprisonment;
In the case of a body corporate, 300penalty units.
(3)In a prosecution of a person for an alleged offence against subsection (1) or (2), it is a defence if the person proves that the person—
(a)did not know; and
(b)could not reasonably be expected to have known—
that the matter or thing was likely to mislead an elector when casting the elector's vote.
Note
Section 179A applies to an offence against subsection (1) or (2).
s.85.Heading to electoral advertisements
The proprietor of a newspaper must cause the word "advertisement" to be printed as a headline in letters not smaller than 10 point to each article or paragraph in the proprietor's newspaper containing electoral matter, the insertion—
(a)of which is, or is to be, paid for; or
(b)for which any reward or compensation or promise of reward or compensation is, or is to be, made.
Penalty:In the case of a natural person, 5penalty units;
In the case of a body corporate, 25penalty units.
Note
Section 179A applies to an offence against this section.
s.86.Authors to be identified
(1)A person must not during the relevant period—
(a)print, publish or distribute; or
(b)cause, permit or authorise to be printed, published or distributed—
a newspaper, circular or pamphlet containing an article, report, letter or other matter containing electoral matter unless the author's name and address are set out at the end of the article, report, letter or other matter, or if only part of the article, report, letter or matter appears in any issue of a newspaper, circular or pamphlet at the end of that part.
Penalty:In the case of a natural person, 5penalty units;
In the case of a body corporate, 25penalty units.
Note
Section 179A applies to an offence against this subsection.
(2)This section does not apply to the publication in a newspaper of—
(a)a leading article; or
(b)an article that consists solely of a report of a meeting and does not contain electoral matter, other than comment made by a speaker at the meeting.
(3)It is sufficient compliance with sub-section (1) if a newspaper containing a letter containing electoral matter sets out the author's name and the suburb or locality in which the author's address is located.
s.179A Criminal liability of officers of bodies corporate—accessorial liability
(1)If a body corporate commits an offence against a provision specified in
subsection (2), an officer of the body corporate also commits an offence against the provision if the officer—
(a)authorised or permitted the commission of the offence by the body corporate; or
(b)was knowingly concerned in any way (whether by act or omission) in the commission of the offence by the body corporate.
(2)For the purposes of subsection (1), the following provisions are specified—
(a) section 36(1);
(b) section 37(2) and (3);
(c) section 83(1);
(d) section 84(1) and (2);
(e) section 85;
(f) section 86(1);
(g) section 110I;
(h) section 123(4);
(i) section 151(1) and (2);
(j) section 155;
(k) section 158(2)(a), (b), (c), (d), (e) and (f).
(3)Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(4)An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(5)In this section—
body corporate has the same meaning as corporation has in section 57A of the Corporations Act;
officer in relation to a body corporate means—
(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or
(b) a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.
(6)This section does not affect the operation of section 323 or 324 of the Crimes Act 1958 or section 52 of the Magistrates' Court Act 1989.
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