With the next federal election not far away, charities and community groups are thinking about what advocacy they want to do. Under Commonwealth electoral laws, some advocacy spending and donations may need to be publicly disclosed, and your organisation may need to consider adjustments in how you use or track donations. This guide is designed to step you through your obligations under these laws.

Important note: The laws changed for organisations incurring over $250,000 or more than a third of their total income in electoral expenditure as at May 2023. If you fall into this category, ensure you click through to the guide on significant third parties’ obligations.

Key questions

Are you paying external costs (e.g. a videographer, Facebook) to create or distribute this communication?* 

• If yes -

Is the dominant purpose of this communication to influence votes in a federal election?

• If yes, authorise and -

Are you spending over $15,200 on electoral matter across the financial year?

• If yes, disclose and note your foreign donation obligations.

Note that this is a guide to provide general information only. It is not intended to be legal advice — you should do your own assessment of your situation under the laws, and seek legal advice if necessary. While this guide has been prepared with great care, we do not take responsibility for any errors in the information provided.

Image Credit: AEC images

This guide provides information on how to assess whether your organisation’s advocacy is deemed to be “electoral matter” under the Act, and what to do if it is.

The Commonwealth Electoral Act 1918 (Cth) (Act) imposes obligations on charities and community groups to:

1. authorise electoral matter;

2. disclose:

   a. electoral expenditure if over $15,200; and

   b. donations of over $15,200 that were used to incur electoral expenditure; and

3. take steps to ensure foreign donations are not spent on electoral matter. 

The Act is enforced by the Australian Electoral Commission, which has also provided guidance for organisations which you can find here.

Questions to ask yourself

There are two key questions you need to ask when working out whether your organisation needs to make disclosures: 

1. are we creating or distributing “electoral matter”?; and

2. are we incurring relevant costs for the electoral matter (“electoral expenditure”)?

Often, addressing the second question first saves you the need to undergo the complex analysis of whether you are creating electoral matter. That’s because the disclosure regime is set up to primarily capture external expenditure — e.g. money you spend on a contract with a videographer; payments to Facebook to boost a post; or money for an ad in a newspaper. 

Much of the advocacy that organisations do, like writing a media release or a social media post, is done in-house and doesn’t cost your organisation anything other than its regular running costs, e.g. a staff member’s salary or a portion of rent for their desk in an office. This spending is usually not disclosable.* 

A quick way to assess whether a communication is disclosable, is to ask:

1. Are you spending external money on public advocacy? 

   1. No, we’re just paying for a staff member’s time —> unless your staff member is employed for the dominant purpose of influencing votes in an election, this is not disclosable. You may still need to authorise the advocacy if it’s printed.

   2. Yes, we’re paying someone external —> you need to ask whether the communication is “electoral matter” — read on. If it is electoral matter, you:

      1. may need to disclose the amount you’re spending and large donations used to fund it; 

      2. may need to observe additional rules around “foreign donors”; and

      3. will need to authorise it. 

Though not a requirement under the law, it is sensible to document the dominant purpose of communications — particularly those which require you to spend a lot of money — which could appear to an outsider to be influencing voters. This can help to clarify your thinking around the dominant purpose of a communication, and would be a helpful record should the AEC ever request further information on a particular communication.

*If the dominant purpose of the staff member’s entire role is to create electoral matter or otherwise influence voters in an election, e.g. you hire an election campaigner, their salary may be disclosable. Likewise if you rent premises specifically for the election, like campaign headquarters, the rent may be disclosable.

“Electoral matter” is matter communicated or intended to be communicated for the dominant purpose of influencing the way electors vote in a federal election (including federal by-elections). “Electoral expenditure” is expenditure incurred for the dominant purpose of creating or communicating electoral matter. You are required to authorise electoral matter, and if you spend over $15,200, to disclose electoral expenditure and donations used to incur electoral expenditure.

The definition of “electoral matter” in the Act is complicated, and requires you to weigh up different considerations. But the key question you are trying to answer should always be front of mind: is the dominant purpose of this communication to influence voters in a federal election?  

There may be many reasons for why your organisation is spending money on a particular communication, but legally there can only be one dominant purpose for it. 

When identifying the dominant purpose of a communication, consider:

1. What are we trying to achieve with this communication? What is our subjective purpose and strategy?

2. Would internal documents and emails support this purpose and strategy?

It is a good idea to ensure staff working on a campaign in the lead up to an election are clear about the purpose and strategy of the campaign and advocacy, so it is accurately and consistently reflected in their internal and external communications. 

Charities do not support or oppose political parties and candidates, but they do support or oppose the policy positions politicians take on their issues. Sometimes, supporting or opposing a politician’s position on an issue will include advocacy aimed at influencing voters. This is important and legitimate advocacy for charities to engage in.

In asking whether you’re influencing voters, first note that communications for the dominant purpose of educating the public, raising awareness or encouraging debate is not electoral matter (see the section below for more detail on what this means).

Second, note that no one consideration by itself determines whether your communication was made or communicated for the dominant purpose of influencing voters in an election. Rather, the Act sets out several considerations that you need to assess.

1. Does the communication expressly promote or oppose a candidate or political party in relation to a federal election?

Where a communication expressly promotes or opposes a candidate or political party in relation to a federal election, it is presumed to be electoral matter. This presumption can be rebutted by proving your organisation had a different dominant purpose, but it’s harder.  

Example: A community group hands out flyers stating “Save our ABC, ditch the Liberals”. The flyers will be presumed to be electoral matter, because they expressly oppose a political party, and “ditch” is a directive to voters to vote them out in the next election. 

Communications that only make an implicit comment on a political party or candidate could still be for the dominant purpose of influencing voters — you will need to assess what the subjective purpose and strategy was behind the communication.

Example: “Vote for the climate” does not make reference to any political party explicitly, but in a contest where it’s well known that some candidates have strong policies on climate action and others have none, it could be an implicit comment on the election and therefore electoral matter.

2. Is there an election on the horizon?

The closer an election is, the more likely it is that influencing voters in the election is the dominant purpose of a communication — but while the timing of an election is important context, it is not determinative. The question is still: what was the dominant purpose of the charity in making the communication?

For instance, it is unlikely that anything but the most pointed advocacy (e.g. “Vote John Smith out at the next election”) would be considered electoral matter if a federal election is still likely 2+ years away. By contrast, a billboard saying something bland like “Renewable energy is more reliable than coal-fired power” could well be electoral matter if it was erected near a polling place two weeks out from an election, especially if the reliability of different energy sources was a hotly contested issue there. 

Example: In the two months leading up to an election, the federal Government makes a surprise announcement that it will not raise JobSeeker. A charity, which has long advocated for a rise, pays to have its response published as an ad in a national newspaper. The proximity of the election is incidental to the charity’s purpose — the advocacy was timed in response to an announcement by the Government, and the charity’s dominant purpose was to inform the public of the problems with the position. This is not electoral matter, despite the proximity of the election.

3. Are you aiming to influence voters, or a candidate/political party?

The months leading up to an election is a crucial time to get commitment from political parties on important issues, be they action on climate change or a national commitment to Voice, Treaty and Truth.

Advocacy in the lead up to an election for the dominant purpose of getting better pre-election policy commitments from political parties or candidates is not electoral matter.

However, if the dominant purpose of your advocacy is to influence voters, not merely the candidates’ position, it will be electoral matter.

The line between the two can be blurry, especially when part of your strategy includes advocacy to increase public pressure on candidates in marginal electorates. On the one hand, spending money on advocacy specifically in marginal electorates close to an election, does indicate a purpose of influencing voters in an election. On the other, organisations may choose to work in marginal electorates because they have limited resources. Focusing efforts in marginal electorates maximises the opportunity to influence political parties’ pre-election commitments because that’s where political parties are paying the most attention.

A useful question to ask yourself is: if we learned there was no chance this candidate/political party would change their position on this issue before the election, would we still spend money on advocacy in this electorate? If yes, your dominant purpose is likely to be influencing voters; if no, it’s likely your dominant purpose is influencing the candidate/political party, not voters.

Example: An organisation campaigns to get a candidate of a major party voted out in a marginal seat by galvanising voters around the candidate’s regressive immigration policy. The long-term strategy is to send a message to the rest of the party that in future elections, keeping this regressive policy could cost them their seat. Communications for this purpose will be electoral matter.  

Example: In the two months leading up to an election, a charity receives intel that some backbenchers in marginal electorates are feeling exposed by the Government’s refusal to make crucial adjustments to the NDIS. The charity assesses that advocacy in the backbenchers’ electorates could convince them to change their position, and they will in turn pressure the Government to change its position. The charity responds by paying for Facebook ads in the backbenchers’ electorates, asking them to get in touch with the candidate to express their opposition. 

The purpose of the ads is not to get the backbenchers voted in or out of Parliament on the issue, but to make them feel public pressure to change their position. The dominant purpose is unlikely to be influencing voters in an election (note that the position could be different if the candidate would never know about the ads).

However if, after learning that the backbenchers are unlikely to change their position, the charity continues to run the ads anyway in order to influence voters, then the ads will be electoral matter and the Facebook costs would be electoral expenditure.

4. Note that recommunication of matter may be electoral matter, even if the original communication was not

Even if a communication was not originally for the dominant purpose of influencing voters in an election, subsequent communications of the same material may be. 

Example: An environmental charity makes an ad praising the benefits and affordability of solar power. The ad makes no mention of political parties or their policies, and it was not made with the intention of influencing voters in an election. When the ad was originally shown nationally one year out from an election, it was not electoral matter.

However, in the two weeks before an election, the organisation aired the ads again, this time in key marginal electorates for the dominant purpose of influencing voters. Even though the ad was not originally electoral matter, the subsequent airings of them are. Money paid to the television station for the subsequent airings will be electoral expenditure, but not the money spent on the original airings, or on creating the ad.

5. Other things to note

Finally, note that the legislation includes the following as relevant considerations: 

• Will the communication be made to voters near a polling place?

• Is the communication to the public, or a section of the public? A private letter to the PM will not be electoral matter, but if that letter is later published as a full page ad in The Australian, it could be.

• Communications that are unsolicited are more likely to be electoral matter.

Raising awareness, educating the public and encouraging debate

Importantly, the Act states that advocacy that is for the dominant purpose of educating the public, raising awareness or encouraging debate on a policy issue is not electoral matter.

Example: The federal Government announces an increase to JobSeeker by $25 per week. A national peak organisation for social services pays for Facebook ads which explain the difference that raising JobSeeker by $25 per week, versus $185 per week, would make on poverty levels in Australia. The dominant purpose was merely educating the public or raising awareness on an issue, and the ads were therefore not electoral matter.

Example: A think tank hires out a community hall to host a discussion by economic experts and people with lived experience, on how raising JobSeeker by different amounts would impact both the national budget and poverty levels in Australia. The dominant purpose of the event was to encourage debate on an issue, and it is therefore not electoral matter.

Specific exceptions

In addition, the Act includes some specific exceptions to electoral matter, which most relevantly include communications that: 

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

• are or would be by a person for a dominant purpose that is a satirical, academic, educative or artistic purpose; 

• are a private communication to a known person; 

• are a private communication to a political party or candidate; 

• are submission or other communication to Parliament.

You’ve assessed that some of your communications are electoral matter. What do you have to do?

If you’ve spent under $15,200 in electoral expenditure over the financial year: you don’t have to do anything except authorise communications if you’ve printed them or paid for them. 

If you’ve spent between $15,200 and $250,000* in electoral expenditure over the financial year: your organisation is a third party. See this page on third parties’ obligations and remember to authorise your communications.

If you’ve spent over $250,000 in electoral expenditure over the financial year: your organisation is a significant third party. See this page for on significant third parties’ obligations and remember to authorise your communications.

*Or if you’ve spent over $15,200 on electoral expenditure and this was at least one-third of your organisation’s revenue for that year, you will be a significant third party.

Even if your organisation has not reached the $15,200 electoral expenditure threshold and is not a third party, you will still need to authorise electoral matter* that you’ve printed or paid money to create or distribute. Electoral matter must be authorised by the person in your organisation who approves the content of the communication.

If your organisation is a third party or a significant third party, you must authorise all your electoral matter regardless of whether you’ve spent money on it.

Authorising means including the name and location of the person who approved of the communication, usually at the end of the communication itself -

e.g. “Nishma Bloggs, HRLC, Melbourne”

Unfortunately, the form of the authorisation differs slightly depending on the medium you’re using to communicate the electoral matter, but generally the name of the authoriser, the organisation and the town or city they’re located is sufficient.

• Email: include the authoriser’s name, organisation and city at the end of the email or in the signature block;

• Tweet or organic (unpaid) Facebook post: include the authoriser’s name, organisation and city in the “about” section of the Facebook/Twitter account;

• Paid social media ad: include the authoriser’s name, organisation and city at the end of the ad, or include:

  • as a link to a website with the authorisation, accessible by a URL; or

  • in a photo/image used in the ad.

• Printed materials: include the authoriser’s name, organisation and full address - e.g. “Nishma Bloggs, HRLC, 17/461 Bourke St, Melbourne, 3000” at the bottom of the printed materials (the font must be readable).

• Film, video or radio broadcast: both write and say the authoriser’s name, organisation and city at the end of the broadcast.

• Phone call: if callers are using a script, they must say the authoriser’s name, organisation and city at the beginning of the call.

• Conversation (e.g. door knocking): if people are using a script, they must say the authoriser’s name, organisation and city during the conversation.

Penalties: Failure to authorise materials can attract a fine of up to $26,640.

Tip: The law concerning authorisation can be confusing and assessing whether every communication is electoral matter can be time consuming. If you’re not sure whether to authorise, an option is to err on the side of caution and authorise all your materials. This practice can be documented in an internal memo, so it’s clear your organisation doesn’t necessarily believe everything authorised is electoral matter.

For all the detail on authorisation, see s. 321D of the Act and the 2021 Determination.

*Authorisation of communications broadcast on television and radio is governed by different legislation, which requires authorisation of “political matter”, which is broader than “electoral matter”. If you’re not sure whether a communication is “political matter”, the safest option is just to authorise anyway.