4AA Meaning of electoral matter
1
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.
a political entity, to the extent that the matter relates to a federal election; or
b.
a member of the House of Representatives or a Senator.
2
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.
Note:
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).
Rebuttable presumption for matter that expressly promotes or opposes political entities etc.
3
Without limiting subsection (1), the dominant purpose of the communication or intended communication of matter that expressly promotes or opposes:
a.
a political entity, to the extent that the matter relates to a federal election; or
b.
a member of the House of Representatives or a Senator;
is presumed to be the purpose referred to in subsection (1), unless the contrary is proved.
Matters to be taken into account
4
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:
c.
whether the communication or intended communication is or would be to the public or a section of the public;
d.
whether the communication or intended communication is or would be by a political entity or political campaigner (within the meaning of Part XX);
e.
whether the matter contains an express or implicit comment on a political entity, a member of the House of Representatives or a Senator;
f.
whether the communication or intended communication is or would be received by electors near a polling place;
g.
how soon a federal election is to be held after the creation or communication of the matter;
h.
whether the communication or intended communication is or would be unsolicited.
Exceptions
5
Despite subsections (1) and (3), matter is not electoral matter if the communication or intended communication of the matter:
i.
forms or would form part of the reporting of news, the presenting of current affairs or any genuine editorial content in news media; or
j.
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
k.
is or would be a private communication by a person to another person who is known to the first person; or
l.
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
m.
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
n.
occurs or would occur in the House of Representatives or the Senate, or is or would be to a parliamentary committee.
Note:
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).
287AB Meaning of electoral expenditure
Dominant purpose of creating of communicating electoral matter
1
Electoral expenditure means expenditure incurred for the dominant purpose of creating or communicating electoral matter, except to the extent that:
o.
the expenditure is, or is to be, paid or reimbursed by the Commonwealth (except under Division 3 (election funding)) to or in relation to a person who is or was a member of the House of Representatives, a Senator or a Minister, because that person is or was such a member, Senator or Minister; or
p.
the expenditure is incurred by a person or entity (the service provider):
i.
in providing a communication service or communication platform that is used to create or communicate electoral matter; or
ii.
in providing a service for another person or entity that engaged the service provider, on a commercial basis, to create or communicate electoral matter.
Note 1:
For example, expenditure incurred in relation to the communication of electoral matter for which particulars are required to be notified under section 321D is electoral expenditure.
Note 2:
Expenditure by a person who creates matter that is covered by an exception under subsection 4AA(5) is not electoral expenditure. However, as each creation or communication of matter is treated as separate matter under subsection 4AA(2), expenditure incurred by another person who communicates the same matter for the dominant purpose referred to in subsection 4AA(1) may be electoral expenditure.
Note 3:
For deemed electoral expenditure for political campaigners, see section 287J.
2
Expenditure may be electoral expenditure whether the expenditure is incurred for the dominant purpose of creating or communicating particular electoral matter or electoral matter generally.
Expenditure in relation to an election
3
In addition, any expenditure incurred by or with the authority of a political entity, a member of the House of Representatives or a Senator in relation to an election is electoral expenditure, except to the extent that the expenditure is, or is to be, paid or reimbursed by the Commonwealth (except under Division 3 (election funding)) to or in relation to a person who is or was a member of the House of Representatives, a Senator or a Minister, because that person is or was such a member, Senator or Minister.