Commonwealth Electoral Act 1918

Electoral matter means matter communicated or intended to be communicated for the dominant purpose of influencing the way electors vote in an election (a federal election) of a member of the House of Representatives or of Senators for a State or Territory, including by promoting or opposing:

a political entity, to the extent that the matter relates to a federal election; or

a member of the House of Representatives or a Senator.

Communications whose dominant purpose is to educate their audience on a public policy issue, or to raise awareness of, or encourage debate on, a public policy issue, are not for the dominant purpose of influencing the way electors vote in an election (as there can be only one dominant purpose for any given communication).

For the purposes of subsection (1), each creation, recreation, communication or recommunication of matter is to be treated separately for the purposes of determining whether matter is electoral matter.

For example, matter that is covered by an exception under subsection (5) when originally communicated may become electoral matter if recommunicated for the dominant purpose referred to in subsection (1).

Without limiting subsection (1), the dominant purpose of the communication or intended communication of matter that expressly promotes or opposes:

a political entity, to the extent that the matter relates to a federal election; or

a member of the House of Representatives or a Senator, to the extent that the matter relates to a federal election;

Without limiting subsection (1), the following matters must be taken into account in determining the dominant purpose of the communication or intended communication of matter:

whether the communication or intended communication is or would be to the public or a section of the public;

whether the communication or intended communication is or would be by a political entity or significant third party (within the meaning of Part XX);

whether the matter contains an express or implicit comment on a political entity, a member of the House of Representatives or a Senator;

whether the communication or intended communication is or would be received by electors near a polling place;

how soon a federal election is to be held after the creation or communication of the matter;

whether the communication or intended communication is or would be unsolicited.

Despite subsections (1) and (3), matter is not electoral matter if the communication or intended communication of the matter:

forms or would form part of the reporting of news, the presenting of current affairs or any genuine editorial content in news media; or

is or would be by a person for a dominant purpose that is a satirical, academic, educative or artistic purpose, taking into account any relevant consideration including the dominant purpose of any other communication of matter by the person; or

is or would be a private communication by a person to another person who is known to the first person; or

is or would be by or to a person who is a Commonwealth public official (within the meaning of the Criminal Code) in that person’s capacity as such an official; or

is or would be a private communication to a political entity (who is not a Commonwealth public official) in relation to public policy or public administration; or

occurs or would occur in the House of Representatives or the Senate, or is or would be to a parliamentary committee.

A person who wishes to rely on this subsection bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act).