FOI Request LEX4669

Date: 2023

Summary of FOI Request Documents: Authorisation Concerns for Referendum Communications

Main Purpose of the FOI Request

The FOI request sought access to documents related to communications from the Australian Electoral Commission (AEC) concerning the failure to authorise referendum matter, specifically regarding the "Referendum News" Facebook page. The request aimed to understand the nature of the "breach notice" issued and the subsequent exchanges between the AEC and the involved party concerning authorisation compliance.

Documents from the FOI Request

The released documents primarily consist of eleven entries:
* One email titled "Failure to authorise referendum matter" (Document 1).
* One letter, LEX4124, dated 26 July 2023 (Document 2), which appears to be the "breach notice" mentioned in the emails, though its content is heavily redacted.
* Nine emails (Documents 3-11) titled "Authorisation concerns," which form an email chain between the AEC's Authorisation Section (and Legal Services Branch) and a representative of the entity involved, concerning the breach notice and compliance.

All documents were released in part, with exemptions applied under s 47F (personal privacy).

Main Content from the FOI Request Documents

The documents reveal the following key information related to the FOI request:

Initial Notification of Breach: On 26 July 2023, the AEC's Legal Services Mailbox sent an email to the Authorisation Section, enclosing a letter (LEX4124) regarding a "Failure to authorise referendum matter." This letter served as a "breach notice" to an external entity.
Engagement from the Breaching Party: On 31 July 2023, a representative of the entity (later identified as "Advance Australia," operating via the "Referendum News" Facebook page) contacted the AEC Authorisation Section, acknowledging receipt of the "breach notice" and seeking to discuss the matter.
AEC Guidance on Authorisation:
- The AEC confirmed that paid communications (ads) on the "Referendum News Facebook page" containing "referendum matter" (expressly promoting or opposing the law) require authorisation under section 110C(1)(a), (c) and (5) of the Referendum (Machinery Provisions) Act 1984.
- The AEC extended the compliance deadline to 5pm, Monday 7 August 2023.
- Specific guidance was provided on the notifying particulars for non-printed communications (such as Facebook posts), as per Section 12(2)(d) of the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021. For such communications, if a URL/hyperlink is not feasible in an image, the authorisation can be placed at the end of the communication.
- For "other communications" by a "disclosure entity" (not a natural person), the authorisation message must include: (a) the name of the entity, (b) the relevant town or city of the entity, and (c) the name of the natural person responsible for giving effect to the authorisation.
Compliance Action Taken: On 5 August 2023, the representative from "Advance Australia" confirmed they had "amended Referendum News and all other assets to reflect our previous discussion and this advice."
Further Clarification from AEC: On 7 August 2023, the AEC acknowledged the timely action but noted that the authorisation particulars initially provided by "Advance Australia" for their Facebook posts were suited for printed communications. The AEC reiterated the correct particulars for non-print materials and attached a "Referendum flowchart" for further assistance, indicating it was up to "Advance Australia" to amend their particulars if they wished. The AEC's general guidance emphasized: "when in doubt, authorise it."

AI Generated

The Freedom of Information documents primarily detail communications between the Australian Electoral Commission (AEC) and an external entity, identified as "Advance Australia (via Referendum News)," concerning compliance with authorisation requirements for political advertisements related to a "referendum matter" in July-August 2023. Given the timeframe, this contextually refers to the proposed Indigenous Voice to Parliament referendum.

Social Justice & Civil Liberties:
The core of these documents revolves around the AEC's enforcement of Section 110C of the Referendum (Machinery Provisions) Act 1984 and Section 12 of the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021. These provisions mandate that paid political communications, particularly those "expressly promoting or opposing the law," must include clear authorisation details. From a progressive perspective, ensuring transparency in political campaigning, especially for a significant social justice initiative like the Voice referendum, is crucial. It supports informed public discourse, a cornerstone of civil liberties, by allowing citizens to understand who is funding and disseminating political messages. The AEC's actions, such as extending compliance deadlines and clarifying authorisation requirements for digital platforms like Facebook, align with the progressive value of upholding electoral integrity and preventing misleading or unaccountable political advertising.

Corporate Influence & Wealth Distribution:
The documents reveal that "Advance Australia," a known politically active disclosure entity, was using "paid ads" on its "Referendum News Facebook page Ad Library." This highlights the significant role that well-funded organisations play in shaping public opinion through paid media. The AEC's insistence on proper authorisation and disclosure of expenditure (as noted in their advice: "If you are active in campaigning, receiving donations or making donations for a referendum, you may have an obligation to disclose amounts received or spent on referendum matter") directly addresses progressive concerns about the disproportionate influence of wealth in political processes. By enforcing these rules, the government, through the AEC, is taking steps to ensure greater transparency regarding the financial backing of political campaigns, which is a fundamental progressive objective to curb undue corporate or wealthy donor influence and promote more equitable political participation.

Environmental Impact:
There is no information within these documents that directly relates to environmental impact issues.

Alignment with Progressive Values:
The government's actions, as demonstrated by the AEC's regulatory engagement, strongly align with progressive values. The focus on transparency in political campaigning, especially in the context of a critical social justice referendum, ensures that voters are better informed about the sources of the messages they receive. This active regulation of campaign finance disclosure and authorisation is a vital mechanism for fostering a fair democratic process, countering misinformation, and promoting accountability among powerful political actors.

Deviation from Progressive Values:
There are no apparent deviations from progressive values in the government's actions as revealed in these documents. The AEC is diligently performing its regulatory role to ensure a transparent and accountable electoral environment, a goal broadly supported by progressive principles. The redactions under s 47F (personal information) are standard under FOI legislation and do not appear to obscure material information regarding the AEC's regulatory conduct or the broader issues of social justice, corporate influence, or civil liberties in this context.

AI Generated

These FOI documents reveal communications between the Australian Electoral Commission (AEC) and "Advance Australia" (via "Referendum News") regarding compliance with authorisation requirements for referendum-related advertisements, specifically paid Facebook posts. The core issue revolves around the meticulous enforcement of Section 110C of the Referendum (Machinery Provisions) Act 1984 and the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021.

Economic Efficiency: The extensive back-and-forth correspondence, including multiple emails, phone calls, extensions for compliance, and detailed guidance, highlights a significant bureaucratic process. This suggests an inefficient allocation of resources. Both the government agency (AEC) and the private entity (Advance Australia) are expending considerable time and effort navigating complex regulations regarding the format and placement of authorisation notices. This administrative burden detracts from the productive use of resources for both the government and private advocacy groups, indicating a system that is not optimally efficient.

Individual Liberty: The documents demonstrate the government's stringent control over political communication, even in the realm of paid advertisements. Requiring specific authorisation details for all referendum matter, and dictating how this information must be displayed (e.g., specific text at the end of a communication or a URL to a webpage), represents a notable intrusion into the free expression of individuals and organizations. While framed as transparency, this level of detailed regulation can be seen as burdensome and potentially stifling to political speech. The AEC's guidance of "when in doubt, authorise it" could lead to a chilling effect, where groups self-censor or over-comply to avoid penalties, thereby limiting the scope of public discourse.

Fiscal Responsibility: The sheer volume of communications, involvement of the AEC's "Legal Services Branch" and "Chief Legal Officer," and the iterative process of ensuring compliance underscore a substantial expenditure of taxpayer funds. These resources are dedicated to monitoring, notifying, and enforcing granular regulations on political advertising. From a fiscal responsibility standpoint, this raises questions about whether such intensive oversight of communication minutiae represents the most prudent use of public money, particularly when compared to other core government functions.

Limited Government: The AEC's actions, as revealed in these documents, reflect an expansive view of government's role in regulating public debate. The detailed rules for authorisation, the distinction between various communication formats, and the active policing of compliance demonstrate a government agency extending its authority deep into the private sphere of political advocacy. This level of intervention goes beyond merely facilitating elections and moves towards actively shaping and controlling the terms and presentation of political speech, which deviates from the principle of limited government that prioritizes individual autonomy and minimizes state interference in civic life. The government's deep involvement in specifying how private organizations must communicate about public matters illustrates an overreach that can crowd out the spontaneous order of a free society.

AI Generated

The Australian Electoral Commission (AEC) documents reveal a highly bureaucratic and potentially overreaching regulatory approach to referendum communication, indicative of government inefficiency and a questionable commitment to truly transparent and accessible public discourse.

The sheer volume of correspondence (11 documents concerning "Authorisation concerns") dedicated to a single campaign entity, "Advance Australia (via Referendum News)," suggests a significant administrative burden and waste of public resources spent on micromanaging compliance. The AEC actively monitored Facebook Ad Library to identify "paid ads containing referendum matter," demonstrating a form of government scrutiny over political speech that borders on surveillance.

The "general guidance" from the AEC—"when in doubt, authorise it"—is a clear sign of regulatory overreach. This advice implicitly encourages over-compliance, potentially chilling free speech by pushing campaigners to seek authorization even when legally unnecessary, purely out of fear of punitive action. This approach places the burden of navigating complex rules squarely on external entities, rather than simplifying the regulatory environment.

Further highlighting inefficiency, the documents show the AEC extending compliance deadlines and providing a "flow chart" to help campaigners understand the convoluted authorization requirements. The fact that an entity, despite attempting to comply, initially used authorisation particulars suited for "printed communications" on "Facebook posts" (requiring further AEC intervention and clarification) underscores the confusing and unnecessarily complex nature of the government's rules for different media types.

Crucially, the AEC repeatedly states that its "information is not to be considered legal advice." This disclaimer is a severe impediment to transparency and a hidden cost to the public. The government imposes complex regulations and issues "breach notices" but then refuses to provide definitive legal guidance on its own rules. This forces regulated entities to expend their own resources on private legal counsel to interpret government mandates, a wasteful consequence of bureaucratic opacity.

The decision to implement such a detailed, difficult-to-navigate authorization system for referendum campaigns, coupled with a hands-off approach to providing clear legal advice, represents questionable decision-making. It prioritizes a high degree of formal compliance over fostering robust, open public debate, potentially penalizing less-resourced groups and stifling legitimate political expression under the guise of ensuring transparency.

AI Generated

These FOI documents highlight the Australian Electoral Commission's (AEC) diligent efforts in upholding the integrity and transparency of public discourse during a referendum period. The records demonstrate proactive and effective governance, centered on ensuring compliance with essential authorisation regulations for referendum communications.

Upon identifying initial "authorisation concerns" related to paid advertisements, particularly on platforms like Facebook, the AEC's Legal Services Branch and Authorisation Section swiftly engaged with the relevant party. This was not merely an enforcement action but a constructive dialogue aimed at facilitating compliance.

Key actions demonstrating effective governance and public service include:
* Clear Guidance: The AEC provided comprehensive and detailed explanations regarding authorisation requirements under the Referendum (Machinery Provisions) Act 1984 and the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021. This clear articulation of necessary regulations ensures all parties understand their obligations.
* Flexible Support: The AEC demonstrated flexibility by extending compliance deadlines, allowing the entity ample time to rectify their communications. This pragmatic approach underscores a commitment to assisting, rather than simply penalising.
* Proactive Assistance: The Commission offered direct consultation through phone calls and email, attaching helpful resources such as a "Referendum flowchart" and directing parties to the AEC website for further guidance on authorisation and disclosure requirements. This ensures ease of access to vital information for all participants in the democratic process.
* Positive Outcomes: The responsive and collaborative engagement led to the successful resolution of the authorisation concerns, with the entity confirming that their communications had been updated to meet the required standards. This swift and positive outcome ensures that public information campaigns are conducted transparently, serving the public interest by clearly identifying the source of referendum messages.

In summary, these documents illustrate the government's unwavering commitment to maintaining a fair, transparent, and well-regulated environment for public debate, ensuring that all communications related to a national referendum are appropriately authorised and accountable. The AEC's proactive, guiding role is a testament to effective governance in serving the public good.

AI Generated

These FOI documents reveal a breathtaking level of administrative failure, potential regulatory capture, and outright incompetence within the Australian Electoral Commission (AEC) regarding critical referendum authorisation rules.

The initial document immediately damns the AEC, titled "Email - Failure to authorise referendum matter" (Doc 1). This is not an investigation into a failure, but an internal acknowledgement of one. This core failure initiated a cascade of bureaucratic blunders.

Evidence clearly shows a major campaigning entity, identified as "Advance Australia (via Referendum News)," was operating a Facebook page disseminating paid advertisements containing referendum matter without proper authorisation. This is a direct subversion of electoral transparency, yet the AEC's response was toothless and confused.

Crucially, the AEC's enforcement was utterly deficient:
1. Administrative Incompetence: The initial "breach notice" issued by the AEC was so unclear or unhelpful that the recipient's representative was forced to send an "Importance: High" email demanding a "name and phone number for the best AEC team member to discuss this with" (Docs 2, 5, 6, 7). This highlights a fundamental failure in the AEC's standard operating procedures for managing compliance.
2. Lax Enforcement & Preferential Treatment: The AEC granted an extension for the non-compliant entity to rectify their breaches (Docs 2, 3, 9). This undue leniency signals either an acknowledgement that their own rules or processes were unworkable, or a deliberate softening of enforcement for a particular political actor.
3. Compounding Incompetence: Despite direct communication and the extended deadline, the campaigning entity still failed to correctly authorise their materials. The AEC explicitly "note[d] that the authorisation particulars... for your Facebook posts is for printed communications," meaning they applied the wrong rules to digital advertising (Doc 3). This is a monumental failure of the AEC's own guidance, or an astounding level of negligence from the campaigner, which the AEC's processes failed to prevent.
4. Regulatory Abdication: Most damningly, after identifying this continued incorrect compliance, the AEC astonishingly stated: "It is a matter for Advance Australia if it wishes to amend the authorisation particulars, in this instance" (Doc 3). This is an absolute dereliction of duty. The AEC, tasked with ensuring electoral integrity, effectively condoned ongoing non-compliance, transforming a mandatory requirement into an optional suggestion. This is not regulation; it is an embarrassing capitulation.
5. Reactive and Inadequate Guidance: The AEC's belated provision of a "flow chart" and links to their website after multiple instances of non-compliance and incorrect rectification (Doc 3) proves their failure to provide clear, actionable guidance proactively, thereby contributing to the very breaches they were meant to prevent.

The extensive redactions across all eleven documents under the s 47F exemption ("personal privacy or business affairs") are particularly egregious. These redactions conceal names, specific details, and potentially further damning information, fostering suspicion that the government is actively hiding the full extent of its incompetence, potential favouritism, or systemic failure in managing the referendum's democratic process.

In summary, these documents paint a damning picture of an electoral body that is administratively inept, potentially biased in its application of rules, and fundamentally incapable of enforcing critical electoral transparency laws, thereby undermining public trust in the integrity of the referendum.

AI Generated

The provided FOI documents detail an exchange between the Australian Electoral Commission (AEC) and "Advance Australia," an entity operating the "Referendum News" Facebook page, regarding compliance with electoral communication laws during a referendum. The core content shows the AEC issuing a "breach notice" or expressing "authorisation concerns" over paid advertisements on Facebook that promoted or opposed the referendum, which lacked the specific authorisation statements mandated by the Referendum (Machinery Provisions) Act 1984. The AEC extended a compliance deadline, clarified the precise information required for authorisation (entity name, location, responsible person), and "Advance Australia" confirmed their subsequent amendment of the materials.

From an Objectivist perspective, inspired by Ayn Rand, these documents offer a clear illustration of government overreach and bureaucratic interference that violates fundamental principles:

Violation of Individual Rights and Liberty: The primary right at stake is freedom of speech and expression. The government, through the AEC, is not merely preventing fraud or physical coercion; it is dictating the form and mandating specific content (authorisation details) of political communication. The concept of a "breach notice" for unapproved or improperly identified speech, even in a public debate, is anathema to individual liberty. It creates a chilling effect, implying that one's right to communicate is contingent on state approval, rather than being an inalienable prerogative.

Suppression of Rational Self-Interest and Productive Achievement: Individuals and voluntary associations engage in political advocacy out of rational self-interest—to advance ideas they believe are correct and beneficial. Disseminating these ideas, whether through paid advertising or other means, is a productive act in the realm of intellectual discourse. The imposition of complex, detailed "authorisation requirements" and the threat of penalties for non-compliance are direct burdens on this productive achievement. They consume valuable time, effort, and resources that could otherwise be directed towards refining arguments, educating the public, or generating other values. The "when in doubt, authorise it" guidance further exemplifies bureaucratic pressure to over-comply, stifling the free, uninhibited exchange of ideas that is vital for a rational society.

Dangers of Collectivism and Government Overreach: These documents starkly highlight the dangers of collectivism and government overreach:
* Bureaucratic Interference: The entire exchange is an exercise in bureaucratic micromanagement. A government agency is actively monitoring, identifying "breaches," and dictating the precise formatting of private political speech. This is not the limited government of laissez-faire capitalism, whose sole function is to protect individual rights. Instead, it is an intrusive regulatory body that substitutes its judgment for that of individuals, extending its power into the intellectual marketplace.
* Implicit Forced Altruism: While not explicitly demanding "charity," the underlying rationale for such "authorisation" laws often stems from a collectivist premise: that individual communication must be "transparent" for the "collective good" of an "informed electorate." This subtly subordinates the individual's right to speak as they choose (e.g., anonymously or with minimal disclosure) to a perceived societal benefit. Objectivism rejects such forced altruism, asserting that individual rights are paramount and cannot be sacrificed for a "greater good" that is undefined and enforced by the state. A truly informed electorate is one that is free to evaluate all information, not one whose information sources are pre-approved or mandated by a central authority.

Violation of Reason and Laissez-Faire Capitalism: The AEC's actions, while framed as reasonable for "transparency," violate the principles of reason by assuming the public is incapable of discerning information without state-mandated disclosures. A rational individual relies on their own mind to evaluate arguments. Furthermore, the regulation of paid advertisements—a commercial exchange for the dissemination of ideas—is a direct intervention into what should be a free market of ideas, demonstrating a clear departure from the principles of laissez-faire capitalism. The state is interfering in voluntary transactions and dictating the terms of engagement for productive activities related to political discourse.

In summary, these documents reveal a government apparatus exceeding its legitimate function of protecting rights to actively control and regulate expression, imposing burdens that stifle individual initiative and demonstrate a fundamental disregard for the sanctity of individual liberty in the marketplace of ideas.

AI Generated

AEC FOI Disclosure Log Archive

FOI Request LEX4669

Summary of FOI Request Documents: Authorisation Concerns for Referendum Communications

Main Purpose of the FOI Request

Documents from the FOI Request

Main Content from the FOI Request Documents

FOI Request LEX4669, Schedule of Released Documents [PDF 128KB] (pdf)

LEX4669 documents [ZIP 2.9MB] (zip)

ZIP Contents

1. Failure to authorise referendum matter [SEC=UNOFFICIAL]_Redacted.pdf (pdf)

10. Re_ Authorisation concerns [SEC=OFFICIAL]_Redacted.pdf (pdf)

11. RE_ Authorisation concerns [SEC=OFFICIAL]_Redacted.pdf (pdf)

2. LEX4124 - Letter - 26 July 2023_Redacted.pdf (pdf)

3. Authorisation concerns_Redacted.pdf (pdf)

4. RE_ Authorisation concerns_Redacted.pdf (pdf)

5. Re_ Authorisation concerns [SEC=OFFICIAL]_Redacted.pdf (pdf)

6. RE_ Authorisation concerns [SEC=OFFICIAL]_Redacted.pdf (pdf)

7. Re_ Authorisation concerns [SEC=OFFICIAL]_Redacted.pdf (pdf)

8. Re_ Authorisation concerns [SEC=OFFICIAL]_Redacted.pdf (pdf)

9. RE_ Authorisation concerns [SEC=OFFICIAL]_Redacted.pdf (pdf)