1. Electoral Backgrounders are published by the Australian Electoral Commission (AEC) to provide a basic introduction to electoral law, policy and procedures for the information and guidance of all interested parties.
2. This Backgrounder focuses on fraudulent behaviour in relation to compulsory enrolment and compulsory voting that may result in a person casting more than one vote in an election.
3. Individual matters are assessed on a case-by-case basis and ultimately it is for the courts to decide upon the interpretation of the law in any particular case. Accordingly, if you are in doubt about the interpretation of the law in particular circumstances you should seek your own independent legal advice.
4. The Commonwealth Electoral Act 1918 (the Act) is available on the Attorney-General's Commonwealth Law website. Unless otherwise specified, all references to sections are to sections of the Act. Also please note, the words 'voter' and 'elector' are used interchangeably throughout this publication.
5. Under ss. 101 and 245 of the Act, enrolment and voting for federal elections are compulsory. Compulsory enrolment means that all eligible persons must lodge an enrolment form and provide evidence of identity to the AEC to be entered onto the electoral roll. Voting during an election period requires every elector to be marked off the certified list of voters for his or her enrolled division, to be provided with ballot papers, to cast a vote in secret, and to place the ballot papers in the ballot box in the polling place or in a relevant postal or declaration envelope provided by the AEC.
6. This Backgrounder discusses:
7. Electors cannot enrol more than once. Enrolment fraud occurs if an elector makes a false claim for enrolment, for example using a false name or address.
8. Under s. 101 of the Act, all people who are entitled to enrol to vote are required to apply for inclusion on the electoral roll.
9. The offence provisions relevant to this activity are found in the Criminal Code Act 1995 (the Criminal Code). In particular, ss. 136 and 137 provide that it is an offence to give false or misleading documents or information to a Commonwealth Officer in purported compliance with a Commonwealth law. The penalty specified in the Criminal Code for these offences is 12 months imprisonment.
18. The offence of multiple voting is a type of electoral fraud set out in s. 339 of the Act.The relevant text of that section, in force as at 1 July 2007, is as follows:
s. 339 Other offences relating to ballot papers etc.
Penalty: Imprisonment for 6 months.
1A. A person is guilty of an offence if the person votes more than once in the same election.
Penalty: 10 penalty units.
1B. An offence against subsection (1A) is an offence of strict liability.
1C. A person is guilty of an offence if the person intentionally votes more than once in the same election.
Penalty: 60 penalty units or imprisonment for 12 months, or both.
1D. If a person votes more than once in the same election, the number of offences the person is guilty of under subsection (1A) or (1C) because of that voting, is the number of times the person voted in that election, less one.
Note: This subsection means that each act of voting (other than the first act of voting that would be legitimate)gives rise to a separate offence but it is not necessary to know which act of voting was the first one and therefore legitimate.
19. Multiple voting under s. 339 may take the form of a person voting more than once under their own name. For example, where a person attends more than one polling place on election day or votes more than once using early or postal voting.
20. Multiple voting may also be voting more than once by both voting in their own name, and also voting in the name of another person or persons. For example, in addition to casting their own vote, a person may go to a polling place, claim to be another person whom they know is on the roll for that division, have that person’s name marked off the certified list, and cast another vote.
21. Subsection 202AH(1) of the Electoral Act provides that the Electoral Commissioner may, in writing, declare an elector is a “designated elector” if the Commissioner reasonably suspects the elector has voted more than once in the same election. This declaration can be made whether or not the elector has been convicted of a multiple voting offence under subsection 339(1A) or (1C) of the Electoral Act.
22. Designated electors are required to make a declaration vote the next time they vote at a federal election. Polling place staff will not know an elector is a “designated elector” when they attend a polling place. A designated electors name will continue to appear on the certified list. However, their address will be supressed. The suppression of an elector’s address can occur in multiple circumstances, including for silent electors. The suppression of an address alerts voting centre staff that an elector is required to vote by declaration vote (and not the type of elector an individual may be).
23. A declaration will only be made where the Commissioner has detected a possible instance of multiple voting, and investigated it. This includes providing the elector with an opportunity to explain an apparent case of multiple voting. The process for identifying multiple voting is outlined in detail below.
24. The declaration of an elector a “designated elector” will remain in force indefinitely. However, it may be revoked where the Commissioner no longer has a reasonable suspicion that multiple voting did occur. For example, a conviction for multiple voting is reversed on appeal.
25. A designated elector may also make an application appealing a declaration about them at the Administrative Appeals Tribunal (https://www.aat.gov.au/contact-us). This application needs to be made within 28 days of receiving the declaration that they are a designated voter.
Administrative identification mechanisms
26. The AEC has developed comprehensive administrative mechanisms for identifying multiple votes.
27. During the election period identical certified lists of voters for a division are issued by the AEC to each DRO, who in turn supplies these lists to every issuing point at every polling place for the division and for use in the divisional office when marking off declaration voters. The certified lists contain the name, address, gender and date of birth (just the name in the case of a silent elector and a designated elector) of every enrolled elector in the division. When electors are issued with a set of ballot papers, their names are marked off the certified list held at that issuing point. The marking-off process involves drawing a short line between two arrow marks, called 'clock marks', against the name of an elector, to signify that that person has been issued with ballot papers.
28. If that elector then goes to another issuing point to cast another ordinary vote, either at the same polling place later in the day or at a different polling place, or casts a declaration vote, the result will be that another copy of the certified list for that division will be marked to signify that that person has been issued with ballot papers.
29. Immediately following election day, each identical certified list for each division is scanned by computer to read the marks against the names on the certified lists. The scanning enables divisional scanning reports to be produced, showing instances of multiple marks against names, and the issuing location of the certified lists.
30. After the scanning reports are produced, divisional staff manually check the scanning reports for their divisions against the certified lists to eliminate apparent cases of multiple voting in the scanned reports that are in fact caused by accidental contamination of the lists or scanning process – such as dust specks or a mark pressed too hard from the previous page. These marks are then eliminated from further investigation.
31. Divisional staff then check the remaining multiple marks on the scanning reports against the certified lists and other documents to identify polling official error and other official errors, such as reports by officers-in-charge of a polling place that a mistake was made in marking off a certified list. In cases where a declaration vote is involved, checking may reveal that the wrong name has been marked off on the declaration voter certified list. This stage results in more eliminations of multiple marks from further investigation.32. The DRO then examines the apparent cases of multiple voting that remain after the administrative eliminations. The DRO writes to each elector against whose name more than one mark is shown, or no mark at all is shown, to seek details from the elector of whether, when and where they voted.
33. This correspondence will often provide information that will lead to the elimination of more multiple marks from further investigation, on the basis of polling official error. For example, a match may be discovered between an elector with more than one mark against his or her name, and an elector with a similar name on the line above or below on the certified list, with no mark against his or her name. A large number of multiple marks are eliminated from further investigation by this process of matching apparent dual voters with apparent non-voters.
34. Some electors, or their close friends or family, write back to the DRO providing a reason for casting more than one vote, such as language or literacy difficulties or, in some cases, that the elector is elderly and confused and voted more than once due to forgetting they had already cast a vote.
35. The cases that remain after these elimination processes are referred by the DROs to the AEC's National Office through the Australian Electoral Officer (AEO) for the state or territory. Those instances that evidence apparent multiple voting may then be referred to the AFP for consideration. The AFP may then refer the matter to the Commonwealth DPP for possible prosecution of the individual under s. 339 (1), (1A) or (1C) in accordance with the Commonwealth Prosecution Policy.
36. Additionally, and as outlined above, an elector who has been convicted of multi-voting or is otherwise reasonably suspected of doing so may be declared a ‘designated elector.’ Designated electors may only vote by declaration vote. This additional measure ensures that only the first declaration vote received from that elector is admitted to the scrutiny process.
37. It is not possible, or necessary, to remove multiple ordinary votes cast at the polling place from the count of votes, because they cannot be identified under the secret ballot system. The AEC is able to determine whether the number of multiple votes detected would have affected the margin by which the candidate was elected in the division.
38. In addition to identifying cases for possible prosecution, or declaration under the designated voter provision, the AEC examines all detected cases of multiple voting in each division after the election to determine whether the level of multiple voting possibly exceeded the margin by which the candidate was elected. If this is the case, the AEC will consider disputing the election result by petition to the Court of Disputed Returns under s. 357 of the Act as outlined below.
39. Since the major reforms instituted by Parliament in 1983 to amend the Act, the Court of Disputed Returns has not voided any election on the grounds that fraudulent voting affected the result of the election.
Other identification mechanisms
40. The AEC may refer to the AFP for investigation, other cases of possible multiple voting or other electoral fraud that come to the AEC's attention through the media, notification by members of the public, or inquiries of the Federal Parliament.
What avenues are available to a person who suspects another person or persons of multiple voting?
41. If someone suspects another person or persons of multiple voting, there are a number of avenues available. These vary depending on whether or not the poll has taken place, and whether or not the person who knows of, or suspects the case of, multiple voting is a candidate in the election.
Before or during the polling
Anyone who is aware of multiple voting, and in particular intentional multiple voting, is encouraged to notify the AEC National Office on (02) 6271 4411. The AEC will then determine whether it is appropriate to apply to the Federal Court for an injunction to stop the behaviour (see below) or whether the matter should be dealt with after the cessation of polling.
Section 383 of the Act provides that the Federal Court may grant an injunction against a person who has engaged, is engaging or is proposing to engage in any activity that contravenes the Act (or other Commonwealth law as it relates to elections) to restrain them from engaging in the conduct. Section 383 specifies that either a candidate in the election or the AEC may apply to the Federal Court for an injunction. Electors who are not candidates are not able to independently apply to the Federal Court for an injunction and should instead notify the AEC.
After the polling
The High Court of Australia, sitting as the Court of Disputed Returns, is empowered under Part XXII of the Act to inquire into the conduct of federal elections, including any allegations of illegal conduct.
To bring an allegation of multiple voting (or other electoral fraud or illegal conduct)before the Court, it is necessary for an elector to file a petition with the High Court Registry within 40 days of the return of the writ for the election. An elector can only dispute the election in which he or she was enrolled to vote, that is, a petitioner cannot dispute the entire federal election but just the particular House of Representatives division or Senate state or territory election allegedly affected by multiple voting. The petition must set out the facts relied on to dispute the election, provide the particulars of any allegations made, and be signed by witnesses. The requirements in the Act for what information must be set out in a petition are stringent and potential petitioners are advised to seek legal advice before lodging a petition. There are statutory fees and charges involved in petition proceedings, however these charges, and any costs orders, may be waived in certain circumstances in the public interest.
The Court of Disputed Returns is empowered to, amongst other things, declare that a person who was returned as elected is not duly elected, declare any election absolutely void, and to dismiss or uphold the petition in whole or in part.
Under the Act the AEC is itself entitled to file a petition disputing an election. This may occur in circumstances where official error or electoral fraud sufficient to affect the result of an election has been discovered, or where a tied vote in a House of Representatives election cannot be resolved on the recount provided for in the Act.
An election can only be voided if it is found that a disqualification, or an illegality or an error, was sufficient to have affected the result of an election. For example, if the margin by which a candidate was elected in a House of Representatives election was 400 votes, then it would be necessary to establish a level of fraudulent enrolment or voting sufficient to have negated that margin.
In circumstances where multiple voting is established but the result of the election would not have been affected, the AEC would not dispute the validity of the election by petition to the Court of Disputed Returns. The AEC would not petition the election but would instead pursue prosecution of offences in cooperation with the AFP and the DPP.
The Court of Disputed Returns has a number of specific powers that allow it to open the electoral process to a considerable degree of scrutiny. However the Court cannot inquire into the correctness of the electoral roll. The absence of a power for the Court to inquire into the correctness of the Roll reflects that the roll will necessarily contain minor inaccuracies at any given time due to the continuous process of updating elector details.
It has been customary after a federal election for the JSCEM to conduct an inquiry into the conduct of the election. The JSCEM includes representatives from all major political parties in the Parliament, and is chaired by a member of the governing political party or coalition of parties.
Each JSCEM inquiry into a federal election invites public submissions, holds public hearings across the nation for a period of about a year, and, amongst other things, investigates any allegations of electoral fraud. The AEC makes submissions to each JSCEM inquiry on all aspects of the conduct of the election. After they are released for publication by the JSCEM, AEC submissions are made available to the public in hard copy through the JSCEM Secretariat, or on the AEC website at www.aec.gov.au under the heading 'parliamentary submissions'.
Each inquiry results in a JSCEM Report, which analyses and comments on all public submissions, and contains recommendations for changes to electoral legislation and procedures. The JSCEM Report is tabled in Parliament and copies are made publicly available on the Australian Parliament House website www.aph.gov.au. The Government of the day responds to the JSCEM recommendations by tabling a formal response in the Parliament and where necessary proposing legislation to amend the Act.
42. The AEC is not aware of any case of bias or other unlawful conduct in relation to an election having been successfully brought against an AEC employee. The AEC places special emphasis on political neutrality because it is responsible for providing the Australian people with an independent electoral service. It is essential that all AEC employees are, and are seen to be, politically neutral.
43. If anyone wishes to make a complaint about the AEC, then there are a number of avenues . These may include:
44. Anyone with an interest in the interpretation of the laws on fraudulent enrolment and voting in particular circumstances should consult the exact provisions of the Act and should seek their own legal advice.
47. Anyone who believes that the law governing fraudulent enrolment and voting should be changed is entitled to file a submission with the Joint Standing Committee on Electoral Matters at Parliament House.
The AEC has available a number of publications for people interested in the electoral process including:
|18 January 2022||To address amendments the Electoral Act by the Electoral Legislation Amendment (Electoral Offences and Preventing Multiple Voting) Bill 2021 to enable to the Electoral Commissioner to declare an elector to be a ‘designated elector.’|