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

The Electoral Act 2017 (NSW) (Electoral Act) and Electoral Funding Act 2018 (NSW) (Funding Act) (together, the Acts) impose obligations on various organisations, including charities and community groups, to:

1. authorise “electoral material”;

2. in the case of third-party campaigners, comply with the relevant requirements including:

   a. disclosing all electoral expenditure incurred in a “capped State expenditure period”;[1]

   b. disclosing donations used to incur electoral expenditure, where over $1,000 is received from a single donor over the financial year;[2]

   c. complying with donation caps, register, appoint an agent, keep a separate campaign account and take steps to ensure foreign donations are not spent on electoral material.[3]

3. register electoral material you are distributing on election day.

The Acts are enforced by the NSW Electoral Commission (the Commission).  The Commission has provided useful guidance for organisations on its website here and this more detailed (but slightly out of date) factsheet here.

[1] Electoral Funding Act 2018 (NSW) ss 12(2)(a), 20(1).

[2] Electoral Funding Act 2018 (NSW) s 15.

[3] Electoral Funding Act 2018 (NSW) s 46.

There are three key questions you need to ask when working out whether your organisation has obligations under NSW electoral laws:

1. Are we incurring over $2,000 in electoral expenditure between 1 October 2022 and 25 March 2023 (election day)?

• If so, your organisation must register as a third-party campaigner and comply with the obligations outlined below.

2. Will we be creating or distributing “electoral material” after 6 March 2023?

• If so, your organisation will have authorisation obligations.

3. Is our electoral material going to be distributed on election day?

• If so, your organisation will have to register the electoral material ahead of time.

As mentioned above, if your charity or community organisation incurs more than $2,000 in “electoral expenditure” for this state election between 1 October 2022 and election day (“capped State expenditure period”), it will need to register as a third-party campaigner.[1]

“Electoral expenditure” only includes expenditure for the dominant purpose of:[2]

• promoting or opposing a political party;

• promoting or opposing the election of a candidate or candidates; or

• influencing the voting at an election.

It is further defined as expenditure for or in connection with promoting or opposing a party or the election of a candidate or candidates or for the purpose of influencing voting at an election, and which is:[3]

• expenditure on advertisements in radio, television, the internet, cinemas, newspapers, billboards, posters, brochures, how-to-vote cards and other election material;

• expenditure on the production and distribution of election material;

• expenditure on the internet, telecommunications, stationery and postage;

• expenditure incurred in employing staff engaged in election campaigns;

• expenditure incurred for office accommodation for any such staff and candidates (other than for the campaign headquarters of a party or for the electorate office of an elected member);

• expenditure on travel and travel accommodation for candidates and staff engaged in electoral campaigning;

• expenditure on research associated with election campaigns (other than in-house research); or

• expenditure incurred in raising funds for an election or in auditing campaign accounts.

“Electoral material” is defined incredibly broadly, as anything, whether in a tangible or electronic form, containing “electoral matter”.[4]

“Electoral matter” in turn means any matter that:[5]

• is intended or calculated or likely to affect, or is capable of affecting, the result of any election;

• is intended or calculated or likely to influence, or is capable of influencing, an elector in relation to the casting of their vote at any election;

• includes the name of a candidate at any election or the name of the party of any such candidate;

• includes the name or address of the headquarters or campaign office of any such candidate or party; or

• includes the photograph of any such candidate or any drawing or printed matter that purports to depict any such candidate or to be a likeness or representation of any such candidate.

[1] Electoral Funding Act 2018 (NSW) s 4 ‘third-party campaigner’ and s 42(1).

[2] Electoral Funding Act 2018 (NSW) s 7(3).

[3] Electoral Funding Act 2018 (NSW) s 7(1).

[4] Electoral Act 2017 (NSW) s 4 ‘electoral material’.

[5] Electoral Act 2017 (NSW) s 4 ‘electoral matter’.

If your organisation is a third-party campaigner, you will need to:

• register with the Commission. Note that your organisation will then be listed on the publicly available register on the Commission’s website;

• appoint an “official agent”: the official agent is legally responsible for disclosing political donations and electoral expenditure on behalf of the third-party campaigner, and operating the campaign account. All political donations must be made to, and all payments for electoral expenditure must be made by, the official agent;[1]

• keep a separate campaign account and ensure the required processes are in place for managing electoral expenditure, including:

(i) ensuring payments made for electoral expenditure come from your campaign account and are made by your appointed official agent and

(ii) ensuring you have appropriate record keeping processes to accurately track and disclose electoral expenditure);[2]

• ensure you do not accept donations of over $3,300 for the purpose of incurring electoral expenditure;

• ensure you do not exceed any applicable caps on electoral expenditure (while there is currently no cap on electoral expenditure for third-party campaigners, legislation has recently been passed which will eventually impose expenditure caps of $1,288,500 if the third-party campaigner was registered before the commencement of the capped State expenditure period, or $644,300 in other cases. We do not yet know the date these caps will commence);[3]

• disclose your electoral expenditure;[4]

• disclose donations used to incur electoral expenditure, including the donor’s details where over $1,000 is received from a single donor over the financial year. If the donation was made between 1 October and election day, it must be disclosed within 21 days of receipt; and

• let these donors of over $1,000 know they’ll also need to disclose their donation.

In addition, if you will be distributing electoral material on election day, this must be registered with the Commission ahead of time (see below).

Political donation caps

Third-party campaigners have certain obligations in relation to tracking and spending any political donations they receive.

A “political donation” is defined as, among other things:

A gift made to or for the benefit of an entity or other person (not being a party, elected member, group or candidate), the whole or part of which was used or is intended to be used by the entity or person—

i. to enable the entity or person to make, directly or indirectly, a political donation or to incur electoral expenditure, or

ii. to reimburse the entity or person for making, directly or indirectly, a political donation or incurring electoral expenditure.[5]

In particular, NSW legislation imposes caps on the amount that a single donor can give to a third-party campaigner. The amount from each donor is determined on an annual aggregated basis.

This cap is adjusted each financial year. For the 2022-2023 financial year, a third-party campaigner should only add donations of up to $3,300 per donor to its campaign account.

[1] Electoral Funding Act 2018 (NSW) s 42.

[2] Electoral Funding Act 2018 (NSW) s 44.

[3] Electoral Funding Act 2018 (NSW) Division 3 of Part 3.

[4] Electoral Funding Act 2018 (NSW) Division 2 of Part 3.

[5] Electoral Funding Act 2018 (NSW) s 5.

Regardless of whether your organisation is a third-party campaigner, electoral material that is distributed or displayed between 6 March and 25 March 2023 (“regulated period”) must be authorised (with the exception of organic social media posts, see below). Authorisation requirements include visibly and legibly displaying on the electoral material:

• the name and address of the individual who instructed the printing, publishing or distribution of the electoral material;[1]

• if the electoral material is printed, the name of the printer and address at which it was printed;[2] and

• if the electoral material is an online paid advertisement, the name and address of the individual who paid for the advertisement.[3]

Note there are exceptions for certain material on which it would be impractical to display an authorisation, such as t-shirts, pens and balloons.[4]

Material and content of authorisation

The NSW Electoral Commission has provided the following examples of how you should authorise particular forms of electoral material:[5]

Printed material

• Name and street address of the person who authorised the material

• Name of the printer

• Street address of the premises at which it was printed

Organic (unpaid) social media posts

• Name and street address of the third-party campaigner who made the post, or on whose behalf the post was made [6]

• The above information can be given through a link on the post or within the ‘about’ section of your organisation’s social media page 

Webpages

Name and street address of the person who instructed that the material be published.

Non-complying electoral material

The material must also comply with certain legislative prohibitions in the Electoral Act if distributed during the “regulated period”.  The requirements centre around the prohibition of electoral material which is intended or likely to mislead or improperly interfere with an elector casting their vote. This is not a requirement for electoral material to be generally “truthful” (as is the case in SA and the ACT), but rather a prohibition on misleading voters on how to cast a valid vote. For example:

• misleading voting directions;[7]

• a statement to the effect that voting is not compulsory;[8]

• a suggestion that the material is an official communication from the NSW Electoral Commissioner or NSW Electoral Commission;[9] and

• an encouragement to place a tick or cross in a square on a ballot paper (instead of numbering preferences).[10]
  

[1] Electoral Act 2017 (NSW) ss 186(1)(a) and 187.

[2] Electoral Act 2017 (NSW) s 186(1)(b).

[3] Electoral Act 2017 (NSW) s 188.

[4] Electoral Act 2017 (NSW) s 186(2).

[5] See NSW Electoral Commission, ‘Electoral Material Rules and Registration Information.’

[6] See Electoral Regulation 2018 (NSW) r 8a.

[7] Electoral Act 2017 (NSW) s 180(a).

[8] Electoral Act 2017 (NSW) s 180(g).

[9] Electoral Act 2017 (NSW) s 180(h).

[10] Electoral Act 2017 (NSW) s 189.

Any electoral material that you are planning on distributing on election day (except certain material noted below) must be registered with the NSW Electoral Commission.  You must apply to the Commission and include a draft or sample of your electoral material to be approved.[1]

Note that “distribute” is not defined, and there is some ambiguity around how electoral material that remains in place on election day, such as a billboard, should be treated. Section 195(2) states ‘material is taken to be distributed if it is left in such a position and in such circumstances as to indicate that it is intended to be available for collection by members of the public who are in a public place’. This phrasing suggests the type of material that can be distributed is the kind that can be easily transported (e.g. a how to vote card) rather than a fixed billboard that is merely viewed.

The registration period for the upcoming NSW State Election is 8 March 2023 to 5pm 17 March 2023.[2] Distributing election material that has not been registered (whether the deadline was missed or the material was refused by the Commission) is an offence, carrying a penalty of up to $11,000 for incorporated entities.[3]

The rules for registered material include that:

• it contains the relevant authorisation details (as described above);[4]

• if the material is in a language other than English, an accurate English translation is included in the application for registration and a declaration that the translation is accurate;[5] and

• sample ballot papers shown in how-to-vote material are depicted accurately.[6]

 Material that does not have to be registered

There are two types of electoral material that do not need to be registered with the Commission.  These include:

• Electoral material that is distributed prior to election day: however, this material must still comply with the other requirements explained above.

• Exempt forms of electoral material: some types of electoral material do not need to be registered, but they must still have authorisation details.  These include posters, social media posts and advertisements, and newspaper advertisements distributed on election day.[7]

[1] Electoral Act 2017 (NSW) s 199.

[2] Electoral Act 2017 (NSW) s 199(4).

[3] Electoral Act 2017 (NSW) s 195.

[4] Electoral Act 2017 (NSW) ss 200(3)(c) and (d).

[5] Electoral Act 2017 (NSW) s 200(3)(b).

[6] Electoral Act 2017 (NSW) s 181.

[7] Electoral Act 2017 (NSW) ss 195 and 196. Also see NSW Electoral Commission, ‘Registration of electoral material’.