Political Broadcasts (Commonwealth Elections) Regulations (Cth)

Statutory Rules 1992

No. 260 1

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Political Broadcasts (Commonwealth Elections) Regulations

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Broadcasting Act 1942.

 Dated 19 August 1992.

 BILL HAYDEN

 Governor-General

 By His Excellency’s Command,

BOB COLLINS

Minister of State for Transport and Communications

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Citation

 1. These Regulations may be cited as the Political Broadcasts (Commonwealth Elections) Regulations.

[NOTE: These Regulations commence on gazettal: see Acts Interpretation Act 1901, s.48.]

Interpretation

 2.(1)  In these Regulations, unless the contrary intention appears:

“Act” means the Broadcasting Act 1942;

“agent”, in relation to a group or an independent candidate, means an agent of the group or candidate within the meaning of section 289 of the Commonwealth Electoral Act 1918;

“available broadcasting day”, in relation to an election, means any day in a prescribed period except the day on which nominations close;

“broadcaster” means any broadcaster other than the Service and includes each of the Corporation’s television stations and metropolitan and regional AM networks in each State and Territory;

“candidate” means a candidate for election to the Parliament;

“election” means an election to both Houses of the Parliament or a half-Senate election, but does not include a by-election;

“election day”, in relation to an election, means the day on which the election is to be held;

“group” means a group of independent candidates;

“half-Senate election” means Senate elections:

• (a)

  held otherwise than in conjunction with an election to the House of Representatives; and

• (b)

  for one half of the number of places in the Senate for each State;

“independent candidate” means a candidate who is not a candidate for a political party;

“Parliament” means the Parliament of the Commonwealth;

“prescribed period”, in relation an election, means the period prescribed by regulation 4 in relation to that election;

“representative”, in relation to a group, means:

• (a)

  a person appointed in writing by the members of the group to represent the group for the purposes of these regulations; or

• (b)

  if no person is appointed—any member of the group;

“represented party”, in relation to an election, means a political party that:

• (a)

  was represented by one or more members in the Parliament immediately before the end of the last sittings of the Parliament held before the election; and

• (b)

  is contesting the election with at least the number of candidates prescribed in relation to the party by regulation 5;

“vote” means a formal first preference vote;

“voting share” means:

• (a)

  in relation to a represented party—the voting share of the represented party determined in accordance with regulation 7; or

• (b)

  in relation to a political party other than a represented party, or to a group or an independent candidate—the voting share of the political party, group or independent candidate, as the case may be, calculated in accordance with regulations 12 and 13.

References to the previous election

 3. (1)  Subject to subregulation (2), a reference in these Regulations to the previous election, in relation to an election to the Parliament (“the approaching election”), is a reference to the last election to the Parliament held before the approaching election.

 (2) In relation to an election, if a by-election to the Parliament has occurred since the previous election to fill a vacant seat or place, then, in regulation 11 or 12:

• (a)

  a reference to the election or candidature of any person at the previous election is to be taken, in so far as it concerns that seat or place, to be a reference to the election or candidature of that person at the by-election; and

• (b)

  a reference to the votes received by a political party, group or independent candidate at the previous election, is to be taken, in so far as it concerns that seat or place, as a reference to the votes received at that by-election.

What is the prescribed period in relation to an election?

 4. For the purposes of subsection 95H (1) of the Act, the prescribed period in relation to an election is the period:

• (a)

  beginning:

  • (i)

    at the close of nominations for the election; or

  • (ii)

    at the beginning of the third last Saturday before the election day;

 whichever occurs later; and

• (b)

  ending at the end of the last Wednesday before the election day.

What is the minimum number of candidates that must contest an election for a represented party?

 5. For the purposes of paragraph 95H (1) (b) of the Act, the prescribed number of candidates is:

• (a)

  for an election other than a half-Senate election—20; or

• (b)

  for a half-Senate election—6.

How is free time granted to a represented party?

 6.(1)  For the purposes of subsection 95h (2) of the Act, the period of free time that must be granted to a represented party in relation to an election is the number of minutes calculated using the formula:

total time x 0.9 x party’s voting share

total voting share

where:

“total time” means the total free time available in respect of the election calculated in accordance with regulation 8;

“party’s voting share” means the represented party’s voting share;

“total voting share” means the sum of the voting shares of all represented parties.

What is a represented party’s voting share?

 7.(1)   Arepresented party’s voting share in relation to an election is the sum of the votes received by the represented party at the previous election.

 (2)For the purposes of subregulation (1), the sum of the votes received by a represented party at the previous election is the number of votes received by the represented party plus or minus the number of votes (if any) added to or deducted from that number under subregulation (3).

 (3)If a Member of a Parliament was a member of a represented party (the “current party”) in the Parliament immediately before the end of its last sittings held before an election to the Parliament, but was not elected as a candidate for the current party, then in calculating the voting share of the current party or of another represented party:

• (a)

  if the Member was elected at the previous election as an independent candidate—the Member’s votes received at the previous election must be added to the votes received by the current party; or

• (b)

  if the Member was elected at the previous election as a candidate for another represented party (the “former party”) the number of votes received at the previous election by the former party must be divided by the number of candidates for the former party elected to the Parliament and the resulting number of votes:

  • (i)

    added to the votes received by the current party; and

  • (ii)

    deducted from the votes received by the former party.

 (4)Subregulation (3) applies to a Member referred to in that subregulation whether or not the Member is contesting the election.

 (5) For the purposes of subregulation (2), in calculating the number of votes received by a represented party at the previous election, if at that election:

• (a)

  candidates for 2 or more represented parties:

  • (i)

    were candidates for election to the Senate; and

  • (ii)

    formed a group within the meaning of section 168 of the Commonwealth Electoral Act 1918; and

  • (ii)

    had, as a group, one or more group voting tickets registered for the purposes of the election pursuant to section 211 of that Act; and

• (b)

  votes for the group were marked on the ballot papers in accordance with subsection 239 (2) or (3) of that Act;

the number of votes so marked must be divided equally between the represented parties endorsing the candidates and are taken to have been received by the parties accordingly.

What is the total free time available in respect of an election?

8. (1)  For the purposes of the definition of total time in subsection 95H (4) of the Act, the total free time available in respect of an election is the sum of the number of minutes of free time available in relation to each State and Territory, calculated in accordance with this regulation.

 (2) For the purposes of subregulation (1), the free time available in relation to a State or Territory is the number of minutes calculated using the formula:

MB x NB

 where:

 MB is the number of minutes of free time for each broadcaster calculated in accordance with subregulation (3);

 NB is the number of broadcasters in the State or Territory concerned.

 (3) For the purposes of subregulation (2), the free time for each broadcaster in relation to an election is the number of minutes calculated using the formula:

6 x ABD

 where:

 ABD is the number of available broadcast days.

How is an application made for a grant of free time?

 9.(1)  For the purposes of subsection 95K (2) of the Act, an application for a grant of free time in relation to an election must be received by the Tribunal in the period that commences when writs for the election are issued and ends at the close of nominations.

 (2)An application for a grant of free time for a group or an independent candidate may be made by the agent or representative of the group or candidate.

Grant of free time in relation to Senate elections

 10.(1)  Subject to subregulations (2) and (3), for the purposes of subsection 95L (2) of the Act, the period of free time to be granted to a person in relation to a Senate election is the number of minutes calculated using the formula:

total time x 0.1

 where:

 “total time” means the total free time available in respect of the Senate election, being the free time available in an election in relation to the State or Territory concerned, calculated in accordance with regulation 8.

 (2)If it appears to the Tribunal that one or more political parties, groups or candidates may be granted a period of free time under section 95M of the Act, the Tribunal must deduct, from the period determined in accordance with subregulation (1), a period of free time, not exceeding 5% of the total time referred to in that subregulation, sufficient for the grant of free time to the parties, groups or candidates in accordance with regulation 11.

 (3) For the purposes of subsection 95L (3) of the Act, if 2 or more persons must be granted a period of free time under section 95L:

• (a)

  the Tribunal must divide the period of free time determined in accordance with subregulation (1) equally between them; and

• (b)

  subregulation (2) does not apply.

How is remaining free time granted to political parties other than represented parties, or to groups or independent candidates?

 11.(1)  For the purposes of section 95m of the Act, the Tribunal must grant free time available in relation to an election after the grant of free time under sections 95h and 95L of the Act:

• (a)

  to political parties (other than represented parties), groups and independent candidates; and

• (b)

  in the manner provided in subregulation (2).

 (2) The Tribunal must grant, from the free time available in relation to a State or Territory,  2 minutes of free time for each broadcaster in the State or Territory to each political party, group or independent candidate:

• (a)

  in turn; and

• (b)

  in the order set out in subregulation (3);

until the free time available to be granted is less than 2 minutes for each broadcaster.

 (3)For the purposes of subregulation (2), the order of political parties, groups and independent candidates is as follows:

FIRST A political party or group at least one member of which was a candidate in the State or Territory concerned at the previous election, or an independent candidate who was a candidate in the State or Territory at the previous election.

 If this circumstance applies to more than one party, group or candidate, the first party, group or candidate to be granted free time is the one that has the greater or greatest voting share in the State or Territory, followed by the other parties, groups and candidates in descending order of their voting shares in the State or Territory.

 If more than one party, group or candidate has the same voting share, the order in which they will be granted free time will be determined by a ballot conducted by the Tribunal.

SECOND A political party or group none of the members of which was a candidate in the State or Territory concerned at the previous election.

 If this circumstance applies to more than one party or group, the first party or group to be granted free time is the one with more or the most candidates in the State or Territory for the election, followed by other parties in descending order of number of candidates.

 If more than one party or group has the same number of candidates, the order in which they will be granted free time will be determined by a ballot conducted by the Tribunal.

 THIRD Other independent candidates in the State or Territory.

 If this includes more than one candidate, the order in which they will be granted free time will be determined by a ballot conducted by the Tribunal.

What is the voting share of a political party other than a represented party, or of a group or independent candidate?

 12.(1)  The voting share of a political party, a group or an independent candidate in a State or Territory, in relation to an election, is the sum of the votes received by the party, group or independent candidate in the State or Territory at the previous election.

 (2) For the purposes of subregulation (1), the sum of the votes received by a political party or a group in a State or Territory at the previous election is the number of votes (if any) received by:

• (a)

  the party; or

• (b)

  the candidates who were the members of the group;

in the State or Territory at the previous election, as the case may be, plus or minus the number of votes (if any) added to or deducted from that number under subregulation (3).

 (3)If a person was a member of a political party or group (the “current party or group”) immediately before the end of the last sittings of the Parliament held before the election but contested the previous election in a State or Territory otherwise than as a candidate for, or member of, the current party or group, then in calculating the voting share of a political party or group in that State or Territory:

• (a)

  if the person contested the previous election as an independent candidate and not as a member of a group—the person’s votes received in the State or Territory at the previous election must be added to the votes (if any) otherwise received by the current party or group in the State or Territory; or

• (b)

  if the person contested the previous election as a candidate for another political party or as a member of another group (the “former party or group”), the number of votes received by the former party or group in the State or Territory at the previous election must be divided by the number of candidates for the party or in the group, as the case may be, in the State or Territory at the previous election, and the resulting number of votes:

  • (i)

    added to the votes (if any) otherwise received in the State or Territory by the current party or group; and

  • (ii)

    deducted from the votes received in the State or Territory by the former party or group.

 (4) Subregulation (3) applies to a person referred to in that subregulation whether or not the person is contesting the election.

 (5) For the purposes of subregulation (2), in calculating the number of votes received by a political party at the previous election, if at that election:

• (a)

  candidates for 2 or more political parties:

  • (i)

    were candidates for election to the Senate; and

  • (ii)

    formed a group within the meaning of section 168 of the Commonwealth Electoral Act 1918; and

  • (ii)

    had, as a group, one or more group voting tickets registered for the purposes of the election pursuant to section 211 of that Act; and

• (b)

  votes for the group were marked on the ballot papers in accordance with subsection 239 (2) or (3) of that Act;

the number of votes so marked must be divided equally between the political parties endorsing the candidates and the votes are taken to have been received by the parties accordingly.

 (6) In this regulation “political party” means a political party other than a represented party.

Votes received by independent candidates in periodic elections

 13.(1)  Subregulation (2) applies for the purposes of:

• (a)

  establishing the place of a group or an independent candidate in the order under subregulation 11 (3); or

• (b)

  calculating the voting share of a group or an independent candidate under regulation 12;

in relation to an election.

 (2) A member of the Senate who, in relation to an election to either House of the Parliament:

• (a)

  is an independent candidate or a member of a group; and

• (b)

  did not contest the previous election; and

• (c)

  was last elected to the Senate as an independent candidate or a member of a group;

is taken to have contested the previous election, and the votes received by the member when the member was last elected are taken to have been received at the previous election.

Notification of a grant of free time.

 14. For the purposes of subsections 95N (1) and (2) of the Act, when the Tribunal decides to grant free time to an applicant for free time, or refuses to grant free time to the applicant, the Tribunal must send a notice of its decision to the applicant at the address given in the application.

How are units of free time created and distributed?

 15.(1)  For the purposes of subsection 95p (1) of the Act, a period of free time granted to a political party, a group or an independent candidate in relation to an election must be:

• (a)

  divided into:

  • (i)

    if the free time is granted to a represented party—equal periods of free time in respect of each broadcaster in each of the States and Territories; or

  • (ii)

    in any other case—equal periods of free time in respect of each broadcaster in each of the States and Territories in relation to which the free time is granted; and

• (b)

  further divided by 2 to create units of free time in respect of each of those periods.

 (2) The number of whole units resulting from the division of a period of free time under subregulation (1) is taken to be distributed to the political party, group or candidate concerned.

 (3) For the purposes of subsection 95p (2) of the Act, the Tribunal must:

• (a)

  take from the number of units created from a period of free time granted to a political party, group or independent candidate in relation to a State or Territory under subregulation (1) any part of a unit resulting from the division of the period into units; and

• (b)

  add all the parts of units in relation to a State or Territory together; and

• (c)

  distribute 1 unit for each broadcaster in the State or Territory to each political party, group or independent candidate not granted a period of free time under subregulation 11 (2):

  • (i)

    in turn; and

  • (ii)

    in the order set out in subregulation 11 (3);

 until the number of units remaining is less than the number of broadcasters; and

• (d)

  discount any units left over.

How are units of free time allocated to broadcasters?

 16. For the purposes of subsection 95p (3) of the Act, the Tribunal must allocate units of free time distributed to each political party, group or independent candidate by allocating an equal number of units to each broadcaster.

How must a broadcaster use a unit of free time?

 17.(1)  For the purposes of subsection 95Q (2) of the Act, a broadcaster must use units of free time allocated to the broadcaster in the following manner:

• (a)

  on each available broadcasting day; and

• (b)

  in the case of units that are to be used for a television broadcast—at least 3 units on each day, in the period between 6 pm and 10.32 pm, with at least one unit in the period between 6 pm and 8 pm; and

• (c)

  so as to ensure that election broadcasts commence not less than 30 minutes apart; and

• (d)

  as far as practicable to transmit election broadcasts made by each political party, group and independent candidate to approximately the same number of viewers or listeners in the area serviced by the broadcaster.

(2)

The broadcaster must not use a unit of free time:

• (a)

  in the case of a unit that is to be used for a television broadcast—outside the period applicable to the broadcaster under subregulation (1); or

• (b)

  to allow:

  • (i)

    a political party other than a represented party; or

  • (ii)

    a group; or

  • (iii)

    an independent candidate;

 to make an election broadcast before the fourth available broadcasting day.

Where is a broadcaster not required to make a unit of free time available?

 18.(1)  For the purposes of paragraph 95Q (6) (b) of the Act, a broadcaster is not required to make a unit of free time available to a political party or group unless the chief executive officer of the party or the agent or representative of the group, as the case may be:

• (a)

  gives the broadcaster a copy of the broadcast no later than:

  • (i)

    if the broadcast is to be made on a Sunday or a Monday–noon on the Friday immediately before the Sunday or Monday; or

  • (ii)

    in any other case–noon on the day immediately before the day on which the broadcast is to be made; and

• (b)

  on or before the time referred to in paragraph (a), enters into a deed on behalf of the party or group indemnifying the broadcaster in relation to a civil action against the broadcaster in relation to the broadcast.

(2) For the purposes of paragraph 95Q (6) (b) of the Act, a broadcaster is not required to make a unit of free time available to an independent candidate unless the candidate:

• (a)

  gives the broadcaster a copy of the broadcast no later than:

  • (i)

    if the broadcast is to be made on a Sunday or a Monday–noon on the Friday immediately before the Sunday or Monday; or

  • (ii)

    in any other case–noon on the day immediately before the day on which the broadcast is to be made; and

• (b)

  on or before the time referred to in paragraph (a), enters into a deed under which the candidate indemnifies the broadcaster in relation to a civil action against the broadcaster in relation to the broadcast.

How much additional broadcasting time is a licensee entitled to?

 19. For the purposes of subsection 95 Q (7) of the Act, if a licensee is subject to a restriction imposed by the Tribunal in relation to the amount of time in which the licensee may broadcast advertisements, the amount of additional broadcasting time to which the licensee is entitled for the purpose of broadcasting advertisements is equal to the amount of time required by the licensee to make election broadcasts.

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NOTE

1. Notified in the Commonwealth of Australia Gazette on 20 August 1992.