Bill C-544

2nd Session, 41st Parliament,

62 Elizabeth II, 2013

house of commons of canada

BILL C-544

An Act to amend the Auditor General Act (government advertising)

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Elimination of Partisan Government Advertising Act.

2. The Auditor General Act is amended by adding the following after section 23:

ADVERTISING COMMISSIONER

Appointment

23.1 (1) The Auditor General shall, in accordance with the Public Service Employment Act and with the advice of an interview panel struck to assist the Auditor General in the selection process, appoint a senior officer, to be called the Advertising Commissioner, who shall report directly to the Auditor General.

(2) The Advertising Commissioner shall, to ensure that the requirements of this Act are met, assist the Auditor General in performing the duties set out in this Act that relate to the use of public funds for advertisements referred to in subsection 23.3(1), printed matter referred to in subsection 23.4(1) or messages referred to in subsection 23.5(1).

Interpretation

23.2 The following definitions apply in this section and in sections 23.3 to 23.95.

“department” means

(a) a department listed in Schedule I to the Financial Administration Act;

(b) a corporation listed in Schedule II to that Act;

(c) a Crown corporation listed in Schedule III to that Act;

(d) the Office of the Prime Minister of Canada;

(e) the Cabinet; or

(f) any organization that is designated by the Governor in Council as a department for the purposes of this Act.

“department head” means,

(a) in relation to a department listed in Schedule I to the Financial Administration Act, the deputy minister;

(b) in relation to a corporation listed in Schedule II to that Act, its chief executive officer or, if there is no chief executive officer, its statutory deputy head;

(c) in relation to a Crown corporation, its chief executive officer;

(d) in relation to the Office of the Prime Minister and the Cabinet, the Clerk of the Privy Council; and

(e) in relation to such other organizations as are designated by regulation, the person specified by the regulations as the department head.

“item” means a reviewable advertisement, reviewable printed matter or a reviewable message.

“prescribed” means prescribed by regulations made under this Act.

Advertising Requirements

23.3 (1) This section applies with respect to any advertisement that a department, on payment, proposes to post on the Internet, publish in a newspaper or magazine, display on a billboard or broadcast on radio or television.

(2) The department head shall give a copy of the advertisement to the Advertising Commissioner for review.

(3) The department shall not post, publish, display or broadcast the advertisement before the department head receives notice, or is deemed to have received notice, of the results of the review.

(4) For greater certainty, no print run is to be made of a proposed advertisement until the department head receives notice, or is deemed to have received notice, of the results of the review.

(5) The department shall not post, publish, display or broadcast the advertisement if the department head receives notice that, in the Advertising Commissioner’s opinion, the advertisement does not meet the requirements of this Act.

Printed Matter Requirements — Bulk Delivery

23.4 (1) This section applies with respect to printed matter that a department, on payment, proposes to distribute to households in Canada, either by bulk mail or by another method of bulk delivery.

(2) The department head shall give a copy of the printed matter to the Advertising Commissioner for review.

(3) The department shall not distribute the printed matter before the department head receives notice, or is deemed to have received notice, of the results of the review.

(4) For greater certainty, no print run is to be made of the printed matter until the department head receives notice, or is deemed to have received notice, of the results of the review.

(5) The department shall not distribute the printed matter if the department head receives notice that, in the Advertising Commissioner’s opinion, it does not meet the requirements of this Act.

(6) For the purposes of this section, printed matter is distributed by bulk mail or another method of bulk delivery if, when it is distributed, it is not individually addressed to the intended recipient.

Requirements for Additional Classes of Messages

23.5 (1) This section applies with respect to such additional classes of messages — as may be prescribed — that a department proposes to convey to the public in such circumstances as may be prescribed.

(2) The department head shall give a copy of the message to the Advertising Commissioner for review.

(3) The department shall not convey the message before the department head receives notice, or is deemed to have received notice, of the results of the review.

(4) The department shall not convey the message if the department head receives notice that, in the Advertising Commissioner’s opin-ion, the message does not meet the requirements of this Act.

23.6 Sections 23.3, 23.4 and 23.5 do not apply with respect to a message

(a) that is a notice to the public required by law;

(b) that concerns an urgent matter affecting public health or safety;

(c) that is a job advertisement; or

(d) that concerns the provision of goods or services to a department.

23.7 (1) When an item is given to the Advertising Commissioner for review, the Advertising Commissioner shall review it to determine whether, in his or her opinion, it meets the requirements of this Act.

(2) The decision of the Advertising Commissioner is final and not subject to appeal.

23.8 (1) An item

(a) shall be a reasonable means of achieving one or more of the following purposes:

(i) informing the public of current or proposed government policies, programs or services available to them under existing Acts of Parliament,

(ii) informing the public of their rights and responsibilities under the law,

(iii) encouraging or discouraging specific social behaviour, in the public interest, or

(iv) promoting Canada or any part of Canada as a good place to live, work, invest, study or visit or promoting any economic activity or sector of Canada’s economy;

(b) shall include a statement that the item is paid for by the Government of Canada;

(c) shall not include the name, voice or image of a member of the Cabinet, a member of the House of Commons or a Senator;

(d) shall not be partisan;

(e) shall not have as a primary objective to foster a positive impression of the governing party or a negative impression of a person or entity who is critical of the government; and

(f) shall meet such additional requirements as may be prescribed.

(2) Paragraph (1)(c) does not apply with respect to an item for which the primary target audience is located outside Canada.

(3) An item is considered to be partisan if, in the opinion of the Advertising Commissioner, a primary objective of the item is to promote the partisan interests of the governing party.

(4) In deciding whether a primary objective of an item is to promote the partisan interests of the governing party, the Advertising Commissioner shall consider such factors as may be prescribed, and may consider such additional factors as he or she considers appropriate.

23.9 (1) The Advertising Commissioner shall notify the department head of the results of the review within the prescribed number of days after receiving an item for review.

(2) If the notice is not given within that period, the department head is deemed to have received notice that the item meets the requirements of this Act.

23.91 (1) If a department proposes to use a revised version of an item that does not meet the requirements of this Act, the department head must give the revised version to the Advertising Commissioner for further review.

(2) The department shall not use the revised version before the department head receives notice, or is deemed to have received notice, of the results of the review.

(3) The department shall not use the revised version if the department head receives notice that, in the Advertising Commissioner’s opin-ion, the revised version does not meet the requirements of this Act.

(4) Sections 23.7 and 23.8 apply with respect to the review of the revised version.

(5) The Advertising Commissioner shall notify the department head of the results of the further review within the prescribed number of days after receiving the revised version.

(6) If the notice is not given within that period, the department head is deemed to have received notice that the revised version meets the requirements of this Act.

Reports to Parliament

23.92 (1) Each year, the Advertising Commissioner shall, on behalf of the Auditor General, report to Parliament about such matters as the Advertising Commissioner considers appropriate relating to his or her powers and duties under this Act.

(2) In the annual report, the Advertising Commissioner shall notify the Speakers of the Senate and the House of Commons of any contraventions of section 23.3, 23.4, 23.5 or 23.91.

(3) The Advertising Commissioner may make a special report to Parliament at any time on any matter that, in the opinion of the Commissioner, should not be deferred until the annual report.

(4) The Advertising Commissioner shall cause each annual report or special report to be laid before the Senate and the House of Commons forthwith or, if that House is not then sitting, on any of the first 10 days afterwards that it is sitting.

Access to Records

23.93 The Advertising Commissioner may examine the records of a department at any time for the purpose of determining whether section 23.3, 23.4, 23.5 or 23.91 has been contravened, and the Advertising Commissioner or his or her designate shall be given access to such records as he or she considers necessary for that purpose.

Immunity

23.94 (1) No action or other proceeding may be brought against a person who posts, publishes, displays or broadcasts a reviewable advertisement on the sole ground that, under this Act, a department was not permitted to use it to communicate with the public.

(2) No action or other proceeding may be brought against a person who distributes reviewable printed matter on the sole ground that, under this Act, a department was not permitted to distribute it.

(3) No action or other proceeding may be brought against a person who conveys to the public on behalf of a department a reviewable message on the sole ground that, under this Act, a department was not permitted to convey it to the public.

Regulations

23.95 The Governor in Council may make regulations

(a) designating an entity or class of entities as a department and specifying the head of the department for the purposes of this Act;

(b) prescribing additional classes of messages and circumstances for the purposes of subsection 23.5(1);

(c) prescribing additional requirements for the purposes of paragraph 23.8(1)(f);

(d) prescribing additional factors for the purposes of subsection 23.8(4); and

(e) prescribing a number of days for the purposes of subsections 23.9(1) and 23.91(5).