Referendum disclosure regime

The disclosure regime under the Referendum (Machinery Provisions) Act 1984 (Cth) (Act) ensures that the public is informed about the financial dealings of entities involved in a referendum process by requiring ‘referendum entities’ and relevant donors to lodge returns with the Australian Electoral Commission (AEC). These returns will be published on the Transparency Register after a referendum.

Do you have to disclose your referendum expenditure?

Referendum entities are required by the Act to disclosure referendum expenditure.

A referendum entity is an individual or organisation that incurs referendum expenditure over the relevant disclosure threshold of $15,200 during the referendum disclosure period. 

The referendum disclosure period begins six months before the issuing of the writ for the referendum and ends on referendum day. The writ for the Voice Referendum was issued on 11 September so the disclosure period is 11 March 2023 to 14 October 2023.  Entities currently involved in, or planning, campaigning activities in relation to the Voice Referendum will need to assess activities, expenditure and donations retrospectively to ensure compliance with the Act.

Referendum expenditure is expenditure for the dominant purpose of creating or communicating referendum matter. That is, matter communicated for the dominant purpose of influencing the way people vote in a referendum.

• The Act includes a list of considerations that must be taken into account in characterising the dominant purpose of a communication (including the timing of the communication, whether the communication is near a polling place, and whether the communication is unsolicited).
• The definition of referendum matter also includes a range of exclusions which will be relevant to the activities of charities and corporates alike. For example, referendum matter excludes private communications to known persons (such as internal staff events or kitchen table conversations with friends); representations made to Commonwealth public officials (including MPs); news reporting or editorial content; and communication for a dominant purpose that is educative, academic, artistic or satirical. 
• The AEC has provided useful guidance and case studies setting out how to apply the dominant purpose test to expenses like wages.

If you meet the definition of a referendum entity you must make a return to the AEC within 15 weeks of the date of the Voice Referendum which must provide details of:

• Total referendum expenditure incurred during the referendum expenditure period;
• Total value of gifts accepted for the purpose of referendum expenditure;
• Total number of donors; and
• Identifying details for major gifts (over the disclosure threshold).

Do you have to disclose donations?

Referendum donors who donate gifts valued over the disclosure threshold to a referendum entity will be required to submit a separate donor return to the AEC.  This return only applies to gifts that the donor intends to be used for the recipient’s relevant referendum activities.

What are the restrictions on foreign donations and foreign campaigning?

Referendum entities will still be free to continue to accept most donations from overseas philanthropists and foundations to the extent that the donation is not for a relevant referendum purpose. Broadly, the circumstances where a referendum entity will not be able to accept a gift from a foreign donor are where:

• the gift is valued over $100; and either
• the referendum entity knows that the foreign donor intends the gift to be used for relevant referendum purposes; or
• the referendum entity accepts the gift with an intention to use the gift for relevant referendum purposes.

If such gifts are received, they must be returned, or an equivalent amount transferred to the Commonwealth.

Do you have to authorise your communications?

In addition to the disclosure obligations, authorisation requirements apply in relation to referendum matter that is communicated in the following three scenarios:

1. Where the matter is an advertisement relating to a referendum, all or part of the distribution or production of which was paid for (this includes sponsored posts on social media, such as LinkedIn and Instagram);
2. Where the matter forms part of specified communications, including stickers, magnets, and how-to-vote cards; or
3. Where referendum matter is communicated by a disclosure entity. The meaning of disclosure entity includes, relevantly, referendum entities, as well as associated entities and significant third parties under the Commonwealth Electoral Act 1918 (Cth).

Specified particulars are required to be included in the authorisation according to the type of communication. These can be found in the Act and the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021 (here). 

Foreign campaigners are prohibited from authorising referendum matter.

In addition, referendum participants who have engaged in any form of advertisement in relation to the Voice Referendum should also be aware that the authorisation requirements under the Broadcasting Services Act 1992 (Cth) (Broadcasting Act) may apply. These largely mirror the authorisation requirements under the Act. 

Finally, under the Broadcasting Act a “blackout” period applies whereby a broadcaster must not broadcast, under the licence, a referendum advertisement in relation to the referendum during the relevant period. The blackout period for the Voice Referendum will apply from Wednesday 11 October 2023 until the close of voting on 14 October 2023.

Tips for entities engaging in the Voice Referendum process

For charities and other organisations that participate in the Commonwealth electoral process, the steps required to ensure compliance with the referendum disclosure regime will be familiar.  For donors and organisations that are new to advocacy, it will be important to take time to understand how the Act applies to your activities.

To ensure compliance:

• Make sure you are always taking into consideration the dominant purpose of your expenditure and communications regarding the Voice Referendum so you can comply with the regime.
• Referendum participants can look out for further guidance from the Australian Electoral Commission in the campaigners information hub section of its website here.
• We recommend that charities and not-for-profits implement appropriate systems to verify the identity of donors and consider earmarking gifts.
• With regard to authorisation, we recommend entities err on the side of caution and authorise where it seems likely that will become a referendum entity, even if they have not crossed that threshold yet.
• Be aware that sponsored posts and promotional material on social media are likely to be classified as an advertisement and are therefore required to be properly authorised.
• Finally, many registered charities have determined that it is consistent with their charitable purpose to contribute to the Voice Referendum process. The Australian Charities and Not-for-profits Commission (ACNC) has provided guidance on this topic here. Charity law recognises the valuable contribution charities make to matters of public debate and we welcome the ACNC’s clear message that charities can make a statement in support of the Voice Referendum campaign without jeopardising their charity registration.