Electoral Offences

The major offences in force for the purposes of federal elections are contained in the Commonwealth Electoral Act 1918 ("the Act"), and from 24 May 2001, in the general offence provisions of the Criminal Code. The Criminal Code is a Schedule to the Criminal Code Act 1995. A few of the more important electoral offences and the penalties that apply are listed below, but this list is not by any means exhaustive. There are more than 60 electoral offences, and these may change over time as Parliament amends the relevant Act. For a full account of all electoral offences, the latest reprint of the Act and the Criminal Code, must be consulted, with the benefit of legal counsel where necessary.

Enrolment on the Commonwealth electoral roll has been compulsory since 1912. Eligible citizens include all Australians citizens who are 18 years of age or over. There are some exceptions, for example in relation to some prisoners, and people of unsound mind (section 93(8) and 96A). Anyone who fails to enrol may be punished on conviction by a fine of up to 1 penalty unit (section 101(6)).

Fraudulent enrolment or voting offences under the Act include the following:

• forging any enrolment or electoral papers, maximum penalty: 10 years imprisonment (Division 144 of the Criminal Code);
• unlawfully signing any enrolment or electoral papers, maximum penalty: $1 000 (section 336);
• unlawfully witnessing any enrolment or electoral papers: maximum penalty: Imprisonment for 12 months (section 337);
• making any false or misleading statement in any enrolment or electoral papers, maximum penalty: 12 months imprisonment (Division 136 & 137 of the Criminal Code)

Voting at federal elections has been compulsory since 1924 for all citizens on the Commonwealth electoral roll. Anyone who is unable to provide a valid and sufficient reason to the Divisional Returning Officer for failure to vote at a federal election and who does not wish to have the matter dealt with by a Magistrates Court may pay a penalty of $20 (section 245).

If an elector who has failed to vote refuses to pay the $20 penalty, then the matter may be referred to a Magistrates Court, where a fine of up to 1 penalty unit plus costs may be ordered on conviction. Anyone who chooses not to pay the court-ordered fine will be dealt with by the Court accordingly, and this may involve community service orders, seizure of goods, or other court imposed sanctions. The penalty in such circumstances will be a decision for the local Magistrates Court and not the Australian Electoral Commission.

Fraudulent voting offences under the Act include the following:

• impersonating anyone for the purposes of obtaining a ballot paper and voting, maximum penalty: imprisonment for 6 months (section 339(1)(a) and (b)).
• voting more than once at the same election, penalty: 10 penalty units (i.e. $1 700) (section 339(1A), (1B) and (1C)).
• intentionally voting more than once in the same election: 60 penalty units (i.e. $10 200) or imprisonment for 12 months, or both (section 339(1C)).

Nomination offences include making a false or misleading statement on the nomination form, maximum penalty: 12 months imprisonment (Division 137 of the Criminal Code).

Electoral advertising offences include the following:

• Printing, publishing or distributing electoral advertising, such as how-to-vote cards, car stickers, pamphlets, handbills and posters, that do not show the name and address (not a post office box) of the person authorising the advertisement, and the name and place of business of the printer, penalty: up to $1 000 for a person, or $5 000 for a body corporate (section 328). This offence applies at all times and is directed at preventing irresponsible and possibly defamatory election comment by anonymous sources.
• Printing, publishing or distributing electoral advertising that is likely to mislead or deceive an elector in relation to the casting of a vote, penalty: up to $1 000 or 6 months imprisonment or both for a person, or $5 000 for a body corporate (section 329). This offence applies only during the election period and does not refer to the truth or otherwise of the content of the advertisement, but to the manner of marking ballot papers.

Scrutineers and electoral officials are not permitted to wear or display in a polling booth on polling day any badge or emblem of a candidate or political party: penalty $1 000 (section 341).

Canvassing on polling day is prohibited within 6 metres of the entrance to a polling booth: maximum penalty $500 (section 340).

Misconduct in a polling booth is prohibited, and this may include disobeying a lawful direction given by the officer in charge, or entering or remaining in the polling booth without permission: maximum penalty $500 (section 348).

Bribery is prohibited, and this includes asking for or receiving any property or benefit in order to influence or affect the vote of another person: penalty $5 000 or imprisonment for 2 years, or both (section 326). Electoral bribery must be of a serious nature calculated to influence the vote of a particular person in a particular way, and does not include the general provision of food and drink at "sausage sizzles", or benefit concerts and the like during election campaigns.

Note: One penalty unit is currently equal to a fine of $170 (section 4AA of the Crimes Act 1914).