Election explainer: what are the rules governing political advertising?

Negative and positive advertisements were quick to hit the airwaves in the early days of the election campaign. With many more weeks to come, one might be tricked into thinking the major parties can’t keep going at this pace. They must run out of money and get tired of the ads themselves, right?

Political advertising in federal campaigns is governed by a set of laws. Here are some of them.

What are the rules around party-political advertising?

The Australian Electoral Commission (AEC) and the Australian Communications and Media Authority (ACMA) govern political advertising at a federal level. The AEC covers the legalities of political advertising, such as authorisation. ACMA covers the broadcasting side.

They do appear to overlap. However, the AEC would take precedence over ACMA. The AEC legislation, the Commonwealth Electoral Act, is intended to ensure a fair and free election outcome.

The Broadcasting Services Act covers actual broadcast rules. This includes identifying who authorised the advertisement, enforcing blackout rules, and recording details of political advertising and even polling and telemarketing calls.

The blackout period starts from the end of the Wednesday before polling day (in 2016, this will be June 29) and runs until the close of the polls on polling day, or 6PM on July 2. This means that you won’t see any ads in traditional media – TV, radio, newspapers and magazines. But anything online is exempt, so expect YouTube and social media sites to be full of messaging.

Are there any rules about the content of ads?

Both pieces of legislation cover content. The Broadcasting Services Act ensures the authorisation is inserted at the end of every advertisement, or in the right place for print advertisements.

However, the AEC legislation covers the big issues of concern of political advertising. This includes truth in advertising, misleading and deceptive conduct, and defamation of other people.

While there have been parliamentary research papers and High Court cases, the broad consensus right now is that truth in advertising can be legislated for, but it is incredibly problematic to enforce and prosecute.

Misleading and deceptive conduct in ads is enforced only when it concerns promoting informal or incorrect voting.

Defamation is left up to common law. However, even here it is rarely actioned due to the length of proceedings. And the high-profile nature of cases means it can do more harm than good for those involved.

Who pays for these ads?

Advertisements are not taxpayer-funded, though paying for campaign expenses such as advertising is one of the purposes of funding given to political parties after elections, provided they gain 4% of primary votes in the division or Senate race they contest.

This is calculated on a formula of roughly A$2.60 per first-preference vote, although actual figures for this election have not yet been released.

In the 2013 election this amounted to $23.8 million for the Liberals, $20.7 million for Labor, $5.5 million for the Greens, $3.1 for the Nationals, $2.3 million for the Palmer United Party, $1 million for the Liberal Democrats and $642,000 for Nick Xenophon.

How parties decide to spend this money is up to them. However, they must put in annual returns to the AEC. It usually takes nearly a year to work out how much has been spent on election advertising, and where exactly that money came from.

Campaign finance is in need of reform. There are many questions on what returns stakeholders expect to receive from parties and candidates in return for funding election campaigns.

Are networks obliged to give major parties equal time?

No. But they are required to ensure all parties that were present in the last parliament before the current election period have a reasonable opportunity to broadcast election matter.

Networks can screen an extra minute of non-program matter (ads) between 6PM and midnight provided they are political ads. So, during the election campaign, ad breaks may be a little bit longer.

However, the ABC as the national broadcaster does allow the government and official opposition 31 minutes and 30 seconds of free time on ABC1 TV and ABC local radio. This is split into 18 minutes (12 90-second policy announcements) and 13 minutes and 30 seconds for the final pitch.

Minor parties can qualify for free time based on their level of electoral support at the last election and if they are contesting more than 10% of seats at the current election. This time is only two 90-second spots on ABC1 TV and two 90-second spots on ABC local radio for policy announcements. They are not given airtime for the final pitch.

Do we need limits?

There has been debate in recent times around placing caps or limits on some forms of political advertising – especially negative advertising – due to the perceived harm caused to democratic institutions and political engagement by this type of advertising.

There needs to be some limits on negative advertising, such as making up only 30% of total airtime of all political advertising. Political advertising should also be restricted to adult viewing hours to minimise potential negative attitudes and harm to children.

Advertising on the internet should also be part of the blackout period. Voters need peace and quiet to consider each party’s policy promises.

Finally, Free TV Australia should report on the name of the ad, the number of times it was screened, and the markets it was screened in to enable a more transparent and accountable way of measuring the funding and use of political advertising.