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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Electoral Amendment (Publicly Funded
Advertising) Bill 2012
CONTENTS
1. Short title 2
2. Commencement 2
3. Act amended 2
4. Part VIIA inserted 2
Part VIIA -- Restrictions on publicly-funded
advertising during pre-election period for
general elections
179A. Application 2
179B. Terms used 2
179C. Term used: publicly funded advertising 4
179D. Restrictions on publicly funded advertising
during pre-election periods 5
179E. Approval of advertising 6
179F. Electoral Commissioner to act
independently 7
179G. Auditor General to audit compliance with
section 179D 7
179H. Auditor General to submit opinion on
compliance to Parliament 9
179I. Recovery of money spent unlawfully on
publicly funded advertising 9
179J. Relationship with other laws 10
179K. Transitional provisions 10
299--1B page i
Western Australia
LEGISLATIVE ASSEMBLY
(Introduced by Mr Ben Wyatt MLA)
Electoral Amendment (Publicly Funded
Advertising) Bill 2012
A Bill for
An Act to amend the Electoral Act 1907.
The Parliament of Western Australia enacts as follows:
page 1
Electoral Amendment (Publicly Funded Advertising) Bill 2012
s. 1
1 1. Short title
2 This is the Electoral Amendment (Publicly Funded Advertising)
3 Act 2012.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) sections 1 and 2 -- on the day on which this Act
7 receives the Royal Assent;
8 (b) the rest of the Act -- on the day after that day.
9 3. Act amended
10 This Act amends the Electoral Act 1907.
11 4. Part VIIA inserted
12 Before Part VII insert:
13
14 Part VIIA -- Restrictions on publicly-funded
15 advertising during pre-election period for
16 general elections
17 179A. Application
18 This Part applies only in relation to general elections.
19 179B. Terms used
20 In this Part --
21 advertising means advertising in any medium,
22 including (without limitation) advertising by means of
23 radio, television, the internet, newspapers, cinema,
24 signs or billboards;
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Electoral Amendment (Publicly Funded Advertising) Bill 2012
s. 4
1 approved advertising means publicly funded
2 advertising that --
3 (a) is approved under section 179E; and
4 (b) if the approval is granted subject to conditions,
5 complies with those conditions;
6 governing party means a political party one or more of
7 whose parliamentary representatives are Ministers in
8 the Government of Western Australia;
9 government agency --
10 (a) means --
11 (i) an agency as defined in the Public
12 Sector Management Act 1994
13 section 3(1); or
14 (ii) the Police Force of Western Australia;
15 but
16 (b) does not include the Western Australian
17 Electoral Commission;
18 Leader of the Opposition means the Leader of the
19 Opposition in the Legislative Assembly;
20 pre-election period, in relation to a general election,
21 means --
22 (a) in the case of a periodic election, the period
23 that --
24 (i) begins on 1 December in the year before
25 the expiry year in which the election is
26 to be held; and
27 (ii) ends on the date fixed for the polling for
28 the election;
29 or
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Electoral Amendment (Publicly Funded Advertising) Bill 2012
s. 4
1 (b) in the case of any other general election --
2 (i) if the date fixed for the polling for the
3 election is 3 months or more after the
4 date of the writ for the election, the
5 period of 3 months ending on the date
6 fixed for the polling for the election; or
7 (ii) if the date fixed for the polling for the
8 election is less than 3 months after the
9 date of the writ for the election, the
10 period that begins on the date of the writ
11 and ends on the date fixed for the
12 polling for the election;
13 publicly funded advertising has the meaning given in
14 section 179C;
15 public money, other money and statutory authority
16 money have the meanings given in the Financial
17 Management Act 2006 section 3.
18 179C. Term used: publicly funded advertising
19 (1) In this Part --
20 publicly funded advertising means advertising that is
21 funded, wholly or partly and whether directly or
22 indirectly, from public money, other money or
23 statutory authority money.
24 (2) The following is not publicly funded advertising --
25 (a) advertising relating to public health or public
26 safety matters;
27 (b) any report, notice or matter that is required to
28 be published under a written law;
29 (c) any service announcement containing electoral
30 information or other information required to be
31 published for the purposes of an election;
32 (d) job advertisements;
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Electoral Amendment (Publicly Funded Advertising) Bill 2012
s. 4
1 (e) advertising relating to tenders, requests for
2 proposals or requests of a similar nature;
3 (f) any other routine advertising carried out by a
4 government agency in relation to its day-to-day
5 operational activities;
6 (g) any advertising, or advertising in a class of
7 advertising, prescribed by the regulations.
8 (3) Subsection (2)(f) does not include advertising that
9 relates, wholly or partly, to either of the following --
10 (a) any Government decision for which funding is
11 or will be required to be appropriated from the
12 Consolidated Fund for any capital purpose;
13 (b) any policy commitment that a governing
14 party --
15 (i) put forward as part of its election
16 campaign at the previous general
17 election; or
18 (ii) is putting forward as part of its election
19 campaign for a forthcoming general
20 election.
21 179D. Restrictions on publicly funded advertising during
22 pre-election periods
23 (1) The chief executive officer of a government agency
24 must ensure that the government agency does not --
25 (a) carry out publicly funded advertising (other
26 than approved advertising) during a
27 pre-election period; or
28 (b) contract or engage (on behalf of the State or
29 otherwise) any other person to carry out, during
30 a pre-election period, publicly funded
31 advertising (other than approved advertising).
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Electoral Amendment (Publicly Funded Advertising) Bill 2012
s. 4
1 (2) For the purposes of subsection (1), it does not matter
2 whether the publicly funded advertising is carried
3 out --
4 (a) for or on behalf of the government agency; or
5 (b) for or on behalf of any other government
6 agency or any other person or organisation.
7 (3) If, after a government agency contracts or engages a
8 person to carry out publicly funded advertising during
9 a particular period, the issuing of a writ for a general
10 election (other than a periodic election) means that all
11 or part of that period will fall within a pre-election
12 period, this section is not breached if --
13 (a) the contract or engagement is terminated before
14 the pre-election period begins; or
15 (b) the carrying out of that advertising is suspended
16 during the pre-election period.
17 (4) Criminal proceedings (including proceedings under
18 The Criminal Code section 177) do not lie against a
19 person by reason only that the person has not complied
20 with this section.
21 (5) A provision of a contract that breaches this section is
22 void and unenforceable, but does not prejudice or
23 affect the operation of other provisions of the contract.
24 179E. Approval of advertising
25 (1) The chief executive officer of a government agency
26 may apply to the Electoral Commissioner, in the form
27 and manner approved by the Electoral Commissioner,
28 for the approval of any publicly funded advertising.
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Electoral Amendment (Publicly Funded Advertising) Bill 2012
s. 4
1 (2) On considering an application under subsection (1), the
2 Electoral Commissioner may, by written notice,
3 approve the advertising if --
4 (a) the Electoral Commissioner is satisfied that the
5 advertising has a clear public purpose; and
6 (b) after consultation by the Electoral
7 Commissioner with the Leader of the
8 Opposition or a person nominated for the
9 purpose by the Leader of the Opposition, the
10 Leader of the Opposition or, as the case
11 requires, the nominated person agrees that the
12 approval should be granted.
13 (3) An approval can be granted under this section either
14 unconditionally or subject to conditions.
15 (4) An approval can be granted under this section before or
16 during a pre-election period.
17 (5) An approval granted under this section can be revoked
18 by the Electoral Commissioner at any time by written
19 notice to the chief executive officer of the government
20 agency to which the approval was granted.
21 179F. Electoral Commissioner to act independently
22 The Electoral Commissioner is authorised and required
23 to act independently in relation to the performance of
24 the functions of the Electoral Commissioner under this
25 Part, and has complete discretion in the performance of
26 those functions.
27 179G. Auditor General to audit compliance with
28 section 179D
29 (1) As soon as practicable (but in no case later than
30 3 months) after the date fixed for the polling for a
31 general election, the Auditor General must carry out an
32 audit of all government agencies to ascertain whether
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Electoral Amendment (Publicly Funded Advertising) Bill 2012
s. 4
1 or not each government agency has complied with
2 section 179D in relation to that election.
3 (2) An audit under this section may be carried out as part
4 of an audit under the Auditor General Act 2006
5 section 14.
6 (3) The Auditor General must prepare and sign an opinion
7 on an audit carried out under this section, and must
8 state in respect of each government agency audited --
9 (a) whether in the Auditor General's opinion the
10 agency has complied with section 179D in
11 relation to the election; and
12 (b) if the Auditor General finds any case of
13 non-compliance --
14 (i) the details of the non-compliance; and
15 (ii) the Auditor General's best estimate of
16 the cost, to the government agency, of
17 the publicly funded advertising that is
18 the subject of the non-compliance.
19 (4) Before signing an opinion under subsection (3) that
20 contains any finding of non-compliance with
21 section 179D by a government agency, the Auditor
22 General must --
23 (a) give the chief executive officer of the
24 government agency a written statement setting
25 out the finding of non-compliance; and
26 (b) invite the chief executive officer to make
27 submissions or comments on the finding within
28 a reasonable time of at least 14 days specified
29 by the Auditor General.
30 (5) The Auditor General must include in an opinion signed
31 under subsection (3) any submissions or comments
32 made under subsection (4)(b), or a fair summary of
33 them.
page 8
Electoral Amendment (Publicly Funded Advertising) Bill 2012
s. 4
1 (6) The Auditor General must provide the opinion
2 prepared and signed under subsection (3) to each
3 government agency's Minister and give a copy to each
4 agency's chief executive officer.
5 179H. Auditor General to submit opinion on compliance to
6 Parliament
7 (1) Within 28 days after signing an opinion under
8 section 179G(3), the Auditor General must transmit the
9 opinion to both Houses of Parliament if Parliament is
10 then in session and sitting.
11 (2) If Parliament is not in session and sitting when the
12 opinion is signed, then within 28 days after signing the
13 opinion the Auditor General must --
14 (a) transmit a copy of the opinion to the Clerk of
15 the Legislative Council and the Clerk of the
16 Legislative Assembly; and
17 (b) make the opinion available to the public.
18 (3) The opinion may be included in or appended to a report
19 under the Auditor General Act 2006 section 24(1).
20 (4) The Auditor General Act 2006 section 26 applies, with
21 all necessary changes, to a copy of an opinion
22 transmitted to the Clerk of a House of Parliament under
23 subsection (2) as if the opinion were a report under
24 section 24 of that Act.
25 179I. Recovery of money spent unlawfully on publicly
26 funded advertising
27 (1) The cost, to a government agency, of publicly funded
28 advertising that is carried out during a pre-election
29 period in contravention of the duty imposed on the
30 chief executive officer of the agency by section 179D
31 is to be taken, for the purposes of the Financial
32 Management Act 2006 section 49, to be a loss of
page 9
Electoral Amendment (Publicly Funded Advertising) Bill 2012
s. 4
1 official money of which that chief executive officer
2 had control at the time of the loss, and sections 49 and
3 50 of that Act apply accordingly.
4 (2) In proceedings to recover an amount that a chief
5 executive officer is liable to pay under the Financial
6 Management Act 2006 section 49 (as applied by
7 subsection (1)) in respect of the cost of any publicly
8 funded advertising, the amount stated under
9 section 179G(3)(b)(ii) as the Auditor General's best
10 estimate of the cost of the publicly funded advertising
11 is prima facie evidence of the amount that the chief
12 executive officer is liable to pay.
13 179J. Relationship with other laws
14 (1) Section 179D applies even though the Financial
15 Management Act 2006 or another written law or the
16 general law would otherwise require or authorise the
17 spending of any public money, other money or
18 statutory authority money on advertising during a
19 pre-election period.
20 (2) An approval under section 179E is not sufficient to
21 satisfy a requirement, under another written law or the
22 general law, that the spending of public money, other
23 money or statutory authority money be authorised.
24 (3) Nothing in this Part limits or affects any power or duty
25 under --
26 (a) the Health Act 1911 Part IX; or
27 (b) the Emergency Management Act 2005.
28 179K. Transitional provisions
29 (1) If the Electoral Amendment (Publicly Funded
30 Advertising) Act 2012 section 4 comes into operation
31 later than 1 November in the year before an expiry
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Electoral Amendment (Publicly Funded Advertising) Bill 2012
s. 4
1 year, or in an expiry year, this Part does not apply in
2 relation to a periodic election held in that expiry year.
3 (2) If a writ for a general election (other than a periodic
4 election) is issued within 3 months after the Electoral
5 Amendment (Publicly Funded Advertising) Act 2012
6 section 4 comes into operation, this Part does not apply
7 in relation to that general election.
8
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