Safeguards

Marriage Law Postal Survey safeguards - Authorisation requirements and complaints process

Overview

1.  This page will be updated as needed to address common questions.

2.  Legislative safeguards are in place to regulate the conduct of the current debate on whether the law should be changed to allow same-sex couples to marry.  This question is being put to Australian electors in the Marriage Law Postal Survey that is being conducted by the Australian Bureau of Statistics (ABS).

3.  The Marriage Law Survey (Additional Safeguards) Act 2017 (the Safeguards Act) commenced on 14 September 2017 to establish additional safeguards to existing protections.  The additional safeguards operate until 15 November 2017.  Communications about the marriage law survey matter made during this period must ensure that they are accompanied by certain particulars that are aimed to ensure that those making public comments about the marriage survey are identifiable and accountable for those comments.

4.  This Guide provides a basic introduction to the authorisation requirements in the Safeguard Act and the avenues for complaining about communications or conduct during the marriage law survey.  Individual matters are assessed on a case-by-case basis and, ultimately, it is for the courts to decide upon the interpretation of the law in any particular case. Accordingly, if you are in doubt about the interpretation of the law in particular circumstances, you should seek your own independent legal advice.

5.  The Safeguards Act ensures that the survey has a comprehensive suite of safeguards in place to allow the expression of free and informed views, to allow persons to hold and express views without being vilified and ensures the public communications are clearly authorised, so people know who is communicating with them, and to prevent undue influence through bribery, threats and misleading or deceptive publications.  In summary, the Safeguards Act:

  • promotes the expression of free and informed views in the statistical collection process by enhancing transparency, accountability and traceability around communications of marriage law survey matters;
  • requires authorisations to be included on all forms of communication of marriage law survey matter, including printed material, voice call and text messages, and online communication of such matter;
  • provides the Electoral Commissioner with information-gathering powers in relation to the authorisations requirements;
  • applies broadcasting provisions from the Broadcasting Services Act 1992 (the Broadcasting Services Act), the Australian Broadcasting Corporation Act 1983 (the ABC Act) and the Special Broadcasting Service Act 1991 (the SBS Act) requiring the broadcasters, where they broadcast marriage law survey matter expressing a view in relation to the survey to provide reasonable opportunities to any person or organisation holding an opposing view to broadcast material in relation to same-sex marriage and the survey process;
  • sets out offences for bribery and threats, and makes clear that the Statistician and officers of the ABS are not to engage in conduct with the intention of influencing the content of a marriage law survey response provided to the Statistician;
  • provides for civil penalties in relation to conduct such as vilification, interference or discrimination and misleading or deceptive publications relating to the completion of the marriage law survey; and
  • provides injunctive relief in relation to the statistics collection process and related activity.

6.  These safeguard complement a range of existing protections across different legislative frameworks that also protect the integrity of the survey process.  For example there are:

  • obligations, including privacy protections, on officials conducting the survey under the Census and Statistics Act 1905 (the Census and Statistics Act), the Public Service Act 1999 and the Privacy Act 1988; and
  • mail and telecommunications offences in the Criminal Code Act 1995 (Criminal Code).

Authorisation requirements

What communications require authorisation

    7.  The Safeguards Act applies to a wide range of communications including all publicly broadcasted media.  This includes television, radio, digital television and digital radio stations, printed material, voice calls (including robocalls) and text messaging (for example, bulk text messaging).  It covers:

    • all marriage law survey matter in the form of “paid for” advertisements;
    • a broad range of marriage law survey matter in the form of promotional items, such as leaflets, flyer, posters and fridge magnets.
    • a matter that is communicated by, or on behalf of, a person, that is intended to affect whether another person provides a marriage law survey response to the Statistician, or the content of such a response.

    8.  The term ‘communicate’ excludes two types of entities who merely carry or broadcast the communication: carriage service providers and broadcasters.  This exclusion is for avoidance of any doubt, and reflects that in some capacity, broadcasters and carriage service providers are the medium through which another entity’s matter is communicated.  To the extent that broadcasters and carriage service providers merely represent the conduit by which the matter is communicated, and are not the author of the message, the authorisation obligations will not apply but rather will apply to the person who “paid for” the advertisement. This exemption for broadcasters reflects the possibility of live or near-live broadcasts where usual editorial controls may not be available before the content is publicly available. This is contrast to other media platforms, including print media, where there should be a sufficient opportunity to review content before it is published.

    9.  To remove the risk of any breach of the Safeguard Act the general advice is: “when in doubt - authorise the communication”.

    Exceptions

    10.  There are a number of exceptions to authorisation requirements for communications about the marriage law survey.  These exceptions include:

    • communications that form part of clothing or any other item that is intended to be worn on the body and items where the size or nature makes it impracticable to include a notification;
    • communications that form part of the reporting of news, the presenting of current affairs or any editorial content in the news media;
    • communications engaged in solely for genuine satirical, academic or artistic purposes;
    • an opinion poll or research relating to the intentions of survey participants;
    • a communication for personal purposes.  This exception is intended to ensure that personal communications which are clearly not intended to be communicated more broadly do not require an authorisation. For example, a supporter of a politically active group calls a family member of his/her family or a friend and discusses marriage law survey matters with no intention that their views will be distributed more widely in a public setting;
    • an internal communication of a notifying entity which is clearly not intended to be communicated publicly, such as internal consultation on a communications strategy;
    • a communication at a meeting of two or more persons if the identity of the person (the ‘speaker’) communicating at the meeting, and any entity on whose behalf the speaker is communicating, can reasonably be identified by the person or persons to whom the speaker is speaking;
    • a live communication of a meeting, but not any later communication of that meeting.  This removes the authorisation requirements from live communications, such as live broadcasting, without exempting later communication such as delayed broadcasting; and
    • a communication solely for the purpose of announcing a meeting.

    The authorisations particulars

    11.  To ensure the accountability and traceability around communications of marriage law survey matters the Safeguards Act requires the following particulars to be included. 

    Written material

    12.  The particulars that the notifying entity must ensure are contained at the end of a communication. 

    13.  Those particulars include:

    • the name of the person or entity who approved the communication;
    • where the person is an individual the full address suburb or locality at which the person can be contacted;
    • where the entity has a principal office or business premises, the full street address, suburb or locality (including the relevant town or city); and
    • on printed material the particulars must be in a font size that can be read by a person without the use of any visual aid.

    Text messages and certain internet advertising (e.g. Facebook and Google Adwords)

    14.  The particulars that the notifying entity must ensure are contained either at the end of a communication or on a website that can be accessed by a URL that is identified in the communication.

    15.  The particulars must include:

    • the name of the person who approved the communication;
    • where the person is an individual the town or city in which the individual lives;
    • where the person is not an individual, the name of the entity and the relevant town or city of the entity

    16.  Where the particulars are too long to be included in the text message or electronic advertisement, the text message or electronic advertisement must include a link by URL to a website where the required particulars can be found.

    Social media

    17.  The Safeguards Act requires social media content during the limitation period to have an authorisation if the matter is a paid advertisement approved by a person or is communicated by, or on behalf of, a person and is intended to affect whether another person provides a survey response, or the content of their response.

    18.  Where the authorisation requirements apply to most social media content, then it will be sufficient for the matter to include the name of the individual and the town or city in which the individual lives, which may be readily apparent from a person’s social media page. It is sufficient that most Facebook accounts identify the true name of the account owner and their city.  The words “authorised by” do not need to be added to a post, rather it is the identity and location that are the requirements.  Social media content (e.g. Facebook or Twitter) will not require an authorisation if it is communicated for personal purposes, for instance only to personal friends.  

    Telephone calls (including bulk voice calls)

    19.  The particulars that the notifying entity must ensure are contained at the beginning of the call.

    20.  Those particulars include:

    • the name of the person who approved the communication;
    • where the person is an individual the town or city in which the individual lives;
    • where the person is not an individual, the name of the entity and the relevant town or city of the entity

    Websites

    21.  It is not prescribed where an authorisation should appear on a website.  But a website should include the following particulars:

    • the name of the person who approved the communication;
    • where the person is an individual the town or city in which the individual lives;
    • where the person is not an individual, the name of the entity and the relevant town or city of the entity

    Transitional issues

    22.  The offences and civil penalties in the Safeguards Act will only apply to the communication of marriage law survey matter that occurs from 14 September 2017 to 15 November 2017.  Accordingly, material that has been communicated before 14 September 2017 does not require the inclusion of authorisation particulars.  For example, in relation to social media content that existed before 14 September 2017 that is shared after this date, unless further sharing is paid for or its further communication is intended to affect another person’s response to the marriage law survey.

    Obligations on broadcasters

    23.  The Safeguard Act applies certain provisions in the Broadcasting Services Act, the ABC Act and the SBS Act regarding ‘political matter’ and ‘political subject’ to marriage law survey matter for the purpose of the survey during the limitation period.  The obligations that fall to broadcasters under those Acts (which include obligations to publish certain particulars) continue to apply in an unaffected manner in relation to the marriage law survey matter.  This includes obligations to broadcast certain particulars.  It also ensures existing compliance, accountability and transparency requirements under the SBS Act and ABC Act will apply to these broadcasters’ engagement with marriage law survey matter.

    Complaints about conduct in the marriage law survey

    Complaints about authorisations

    24.  Any inquiries or complaints about the authorisation particulars should be directed to the AEC at www.aec.gov.au/About_AEC/Contact_the_AEC/feedback.htm

    Complaints about broadcasters

    25.  Any inquiries or complaints about the obligations placed on broadcasters should be directed to ACMA at acma.gov.au/theACMA/About/Corporate/Structure-and-contacts/contact-the-acma-acma-1

    Complaints about bribery

    26. The Safeguard Act provides that a person cannot ask for, receive or obtain, or give or confer, any property or benefit with the intention of influencing a person’s decision as to whether to provide a response to the marriage law survey or the contents of such a response.  There is a maximum penalty of 60 penalty units in relation to giving or receiving a bribe.  The caselaw on the similar provision contained in section 326 of the Commonwealth Electoral Act 1918 is that the offence is directed at the giving or conferring or promising to a person of any property or benefit, by a person, with the direct intention of influencing or affecting the way a person votes by generating feelings of gratitude or obligation.

    27.  Any inquiries or complaints about possible bribery in persons responding to the marriage law survey should be directed to the AEC at http://www.aec.gov.au/About_AEC/Contact_the_AEC/feedback.htm

    Complaints about threats

    28.  The Safeguard Act provides that a person commits an offence under this provision if they make a threat to an enrolled person to cause detriment, and they intend to influence or affect the enrolled person’s decision whether to provide a marriage law survey response to the Statistician, or the content of such a response.  There is a maximum penalty of 60 penalty units for contravention.

    29.  Any inquiries or complaints about possible threats in persons responding to the marriage law survey should be directed to the AEC at http://www.aec.gov.au/About_AEC/Contact_the_AEC/feedback.htm

    Complaints about vilification

    30.  The Safeguards Act provides that persons must not vilify, intimidate or threaten to cause harm because of any of the following grounds:

    • that the other person or group expresses or holds a view in relation to the marriage law survey question;
    • that the first person believes that the other person or persons hold a view in relation to the marriage law survey question; or
    • the religious conviction, sexual orientation, gender identity, or intersex status of the other person or persons. 

    31.  There is a maximum penalty of 60 penalty units for contravention.

    32.  A person affected by possible vilification can seek the support of a notifying entity to seek the approval and consent of the Attorney‑General to commence an action in the Federal Court.  If you are an agent, officer or a member of a notifying entity and wish to seek the Attorney-General’s approval and consent to commence civil proceedings in relation to vilification, inquiries can be made to surveysafeguards [at] ag.gov.au.

    Complaints about Interference and Discrimination

    33.  The Safeguards Act provides that a person must not engage in conduct that hinders or interferes with any person in providing a marriage law survey response or discriminates against another person because the other person made a donation to a notifying entity.  There is a maximum penalty of 60 penalty units for contravention.

    34.  A person affected by such interference or discrimination can seek the support of a notifying entity to seek the approval and consent of the Attorney‑General to commence an action in the Federal Court.  If you are an agent, officer or a member of a notifying entity and wish to seek the Attorney-General’s consent to commence civil proceedings in relation to interference with survey responses and discrimination, inquiries can be made to surveysafeguards [at] ag.gov.au.

    Complaints about misleading matter about completing the marriage survey

    35.  The Safeguards Act provides that a person must not print, publish or distribute, or cause, permit or authorise to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an enrolled person in relation to responding to the marriage law survey.  There is a maximum penalty of 60 penalty units in relation to misleading or deceptive publications. 

    36.  The intention of this provision is not to ensure that matter that is printed, published or distributed around the general subject matter of the survey is truthful or correct, but rather to address where misleading or deceptive information is provided about how to complete or return a valid marriage law survey response, consistent with the elector's intention.  The Electoral Commissioner or any delegates of the Electoral Commissioner will not regulate any political content of advertising.  The Electoral Commissioner’s role will be to ensure that publications do not mislead or deceive enrolled persons about the way in which they respond to the survey, and more specifically, how the survey form is marked.  For example, publications should not advocate a way of responding to the survey that is not provided for on the survey form or instructions.  This includes marking the survey form in such a way that would result in the response not being counted.

    37.  Any inquiries or complaints about possible misleading material about how to complete the marriage law survey should be directed to the AEC at http://www.aec.gov.au/About_AEC/Contact_the_AEC/feedback.htm

    Complaints about ABS Officers influencing survey responses

    38.  The Safeguards Act provides that the Statistician or an officer of the ABS commits an offence if they engage in conduct with the intention of influencing the content of a marriage law survey response provided to the Statistician.  The offence is limited to those circumstances where the Statistician or officer is exercising powers or performing duties in relation to the marriage law survey.  There is a maximum penalty of 60 penalty units for contravention. 

    39.  This provision will assist in ensuring the impartiality of relevant officers.  It supplements other limitations and obligations placed on the Statistician and officers of the ABS under the Public Service Act 1999, the ABS Act, the Census and Statistics Act and OECD Best Practice

    40.  Any inquiries or complaints about a possible breach of this requirement should be directed to the ABS at our Contact page.