Electoral Backgrounder - polling place offences

Updated: 4 April 2019

The Act, when describing offences uses different terms in different sections. In this Backgrounder definitions for these various terms are:

  1. A 'polling booth' is the location provided at a 'polling place' where voting screens are available at which voters mark their ballot papers.
  2. A 'polling place' is the street address for the location at which a 'polling booth' is located and at which voting takes place.
  3. The 'person in charge', 'person in charge of premises', 'officer in charge' and 'presiding officer' are all terms used to describe the AEC official responsible for electoral activities in particular locations.
  4. The 'officer-in-charge' of each polling place is called the 'presiding officer' during polling, from 8am to 6pm on election day. From 6pm, however, during the counting of the votes (the scrutiny), this officer is called the 'assistant returning officer'.

Introduction

  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. The AEC administers the conduct of federal elections under the provisions of the Commonwealth Electoral Act 1918 (the Act).
  3. This Backgrounder provides introductory information in relation to offences under the Act relevant to polling. More information on some of the offences discussed below, or on those not directly relevant to polling activities, is contained in other Electoral Backgrounders.
  4. Readers should not rely on the information in this document as a statement of how the law will apply 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.
  5. The Act is available on the Australian Government’s Federal Register of Legislation 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.

Offences

Obligations of persons present when pre-poll vote cast s. 200K

  1. A person who is present when an elector signs a pre-poll vote certificate for declaration voting or marks a ballot paper must not interfere with the elector in relation to the elector's vote, do anything that would enable the person to find out how the elector marked the ballot paper or make any communication to the elector in relation to the elector’s vote.
  2. If a person is found guilty of this offence, a court may impose a penalty of 10 penalty units

Scrutineers influencing or communicating with voters at pre-poll voting offices s. 200DB

  1. A scrutineer must not interfere with or attempt to influence any elector within the pre-poll voting office, or communicate with someone else in the pre-poll voting office except where that communication is reasonably necessary for the discharge of the person’s functions as a scrutineer.
  2. If a person found is guilty of this offence, a court may impose a penalty of imprisonment for 6 months.
  3. The Act requires all scrutineers to wear a badge identifying them as a scrutineer whilst in a pre-poll voting office. The badges are supplied by the AEC.
  4. A scrutineer who breaches these requirements, commits misconduct or fails to obey the lawful directions of the presiding officer, may be removed from the pre-poll voting office by a member of the Australian Federal Police (AFP), the state or territory police force, or another person authorised by the presiding officer.

Scrutineers influencing or communicating with voters in polling booths s. 218

  1. A scrutineer must not interfere with or attempt to influence any voter within the polling booth, or communicate with any person in the polling booth except so far as it is necessary in the discharge of the scrutineer's functions.
  2. If a person is found guilty of this offence, a court may impose a penalty prescribed of imprisonment for six months, or 10 penalty units, or both.
  3. The Act requires all scrutineers to wear a badge identifying them as a scrutineer whilst in the polling booth. The badges are supplied by the AEC.
  4. A scrutineer who breaches these requirements, commits misconduct or fails to obey the lawful directions of the presiding officer, may be removed from the polling booth by a member of the Australian Federal Police (AFP), the state or territory police force, or another person authorised by the presiding officer.

Compulsory voting s. 245

  1. An elector is guilty of an offence if the elector fails to vote at an election unless they have a valid and sufficient reason. For more information on compulsory voting see Electoral Backgrounder: Compulsory voting.
  2. However, the effect of sections 231, 233 and 234 is that the voter is actually required to take the issued ballot paper(s) and to retire to the polling booth to mark their vote. It is not sufficient compliance to merely have your name marked off and then to leave the polling booth.
  3. If a person is found guilty of this offence, a court may impose a penalty of 1 penalty unit. In addition, court costs may also be payable. The value of a penalty unit is set by section 4AA of the Crimes Act 1914 (Cth).

Officers and scrutineers to observe secrecy s. 323

  1. Except in relation to Antarctic voting arrangements, an officer or scrutineer must not divulge or communicate any information with respect to the vote of an elector (acquired by him or her in the performance of functions under the Act) that is likely to enable the identification of the elector.
  2. If a person is found guilty of this offence, a court may impose a penalty of imprisonment for six months, or 10 penalty units or both.

Influencing the votes of hospital patients or residents of nursing homes s. 325A

  1. A person who is the proprietor of, or an employee of the proprietor of, a hospital or nursing home must not do anything with the intention of influencing the vote of a patient in, or resident at, the hospital or nursing home.
  2. If a person is found guilty of this offence, a court may impose a penalty of imprisonment for six months, or 10 penalty units, or both.

Bribery s. 326

  1. A person must not ask for, receive, obtain, or offer or agree to ask for, receive or obtain any property or benefit of any kind for themselves or any other person on an understanding that any vote of the person will be influenced or affected.
  2. If a person is found guilty of this offence, a court may impose a penalty of imprisonment for two years, or 50 penalty units, or both.
  3. A person shall not, with the intention of influencing or affecting the vote of any person, give, or promise or offer to give, any property or benefit of any kind to that other person or to a third person.
  4. If a person is found guilty of this offence, a court may impose a penalty of imprisonment for 2 years or 50 penalty units, or both.

Interference with political liberty s. 327

  1. A person must not hinder or interfere with the free exercise or performance, by any other person, of any political right or duty that is relevant to an election under the Act.
  2. If a person is found guilty of this offence, a court may impose a penalty of imprisonment for six months, or 10 penalty units, or both.
  3. A person must not discriminate against another person on the ground of the making by the other person of a donation to a political party, to a State branch or a division of a State branch of a political party, to a candidate in an election of by-election or to a group, by denying access to membership of any trade union, club or other body, by not allowing them to work or to continue to work, by subjecting them to any form of intimidation or coercion or by subjecting them to any other detriment.
  4. If the offender is a natural person – a court may impose a penalty of imprisonment for 2 years or 50 penalty units, or both.
  5. If the offender if a body corporate, a court may impose a penalty of up to 200 penalty units.

Misleading or deceptive publications s. 329

  1. A person must not print, publish or distribute, or cause, permit or authorize to be printed any matter or thing during an election period that is likely to mislead or deceive an elector in relation to the casting of a vote in an election under the Act. The scope of what amounts to "publish" includes not just the print media, but also by radio, television, internet or telephone.
  2. If a person is found guilty of this offence, a court may impose a penalty not exceeding 10 penalty units or a period of imprisonment not exceeding six months, or both. A body corporate found guilty of this offence may be subject to a penalty not exceeding 50 penalty units.

Leaving how-to-vote cards in polling booths s. 335

  1. It is an offence to exhibit or leave a card or paper in a polling booth that has any direction or instruction about how an elector should vote, or about the method of casting a vote.
  2. If a person is found guilty of this offence, a court may impose a penalty of 5 penalty units.
  3. This prohibition does not apply to:
    • Official instructions, for example posters put up by the AEC to assist voters in voting formally (so that the vote is counted); and
    • Cases where a person is appointed by an elector to assist that elector to vote under the provisions in section 234. Section 234 provides that in cases where a person has low vision, physical disability or literacy issues such that he or she is unable to vote without assistance, the elector may appoint another person to assist them in marking their ballot paper. If the elector does not appoint a person to assist them, the presiding officer of the polling place may do so. The elector may indicate how the ballot paper is to be marked by presenting a how-to-vote card to the presiding officer. This presentation of a how-to-vote card does not contravene section 335.

Making false statements to voters about enrolment s. 330

  1. A person commits an offence if, on election day, they knowingly make a statement to a voter, either orally or in writing, with respect to a voter's enrolment and that statement is false or misleading in a material respect.
  2. If a person is found guilty of this offence, a court may impose a penalty of imprisonment not exceeding 6 months, or a fine not exceeding 10 penalty units, or both

Unlawfully marking ballot papers s. 338

  1. If a person makes a mark or writes on a ballot paper of another elector (unless the person is expressly authorised by the Act), the person will be guilty of an offence.

General offences in relation to ballot papers s. 339

  1. Subsection 339(1) of the Act provides for a number of offences in relation to ballot papers. These offences include impersonating any person with the intention of securing a ballot paper to which the impersonator is not entitled; and impersonating any person with the intention of voting in that person's name.
  2. If a person is found guilty of one of these offences, a court may impose a penalty of imprisonment for six months.
  3. If a person is found guilty of voting more than once in an election, a court may impose  a penalty of 10 penalty units. If a person is found guilty of intentionally voting more than once in the same election a court may impose a penalty of 60 penalty units, or imprisonment for 12 months, or both.
  4. Subsection 339(2) sets out that a person is guilty of an offence if the person defaces, mutilates, destroys or removes any notice, list or other document affixed by, or by the authority of, any Divisional Returning Officer.
  5. If a person is found guilty of this offence, a court may impose a penalty up 5 penalty units.

Canvassing near polling booths and pre-poll voting places s. 340

Note: That where a building used as a polling booth, pre-poll voting office or office of a DRO is situated in grounds within an enclosure, those grounds (by notice) may be deemed by the DRO to be part of the polling booth, pre-poll voting office or office of the DRO and the entrance to those grounds would become the entrance to the polling booth, pre-poll voting office or office of the DRO as the case requires.

A person must not engage in any of the following activities within 6 metres of an entrance to a polling booth on election day, or at a pre-poll voting office or office of a Divisional Returning Officer during early voting:

  • Canvassing for votes
  • Soliciting the vote of any elector
  • Inducing any elector not to vote for any particular candidate
  • Inducing any elector not to vote at the election
  • Exhibiting any notice or sign (other than an official notice) relating to an election.
  1. If a person is found guilty of this offence a court may impose a penalty of 5 penalty units.
  2. If a person is engaging in any of the activities listed above and is using a loudspeaker, broadcasting equipment or other sound amplifier-type equipment, and the activity is audible within or six metres from the entrance to the polling booth, pre-poll voting office or office of a Divisional Returning Officer, the person is guilty of an offence.
  3. If a person is found guilty of this offence, a court may impose a penalty of 5 penalty units.

Displaying badges or emblems of candidates in polling booths s. 341

  1. On election day, no officer or scrutineer is allowed to wear or display a badge or emblem of a candidate or political party in a polling booth.
  2. If a person is found guilty of this offence, a court may impose a penalty of 10 penalty units.
  3. If a person is found guilty of this offence, a court may impose a penalty of six months imprisonment, or 10 penalty units or both.

Behaviour at polling booths etc s. 348

  1. In a polling booth, counting centre, or premises at which an application may be made for a pre-poll vote, a person must not commit misconduct, or disobey a lawful direction given by the person in charge of the premises
  2. The person in charge of a polling booth is the presiding officer or the substitute presiding officer.
  3. The person in charge of a counting centre is the Australian Electoral Officer, Divisional Returning Officer or Assistant Returning Officer.
  4. In the case of premises at which an application may be made for a pre-poll vote, the Divisional Returning Officer is the person in charge of the office of the DRO, and any pre-poll voting officer is the person in charge of the pre-poll voting office for which they are located within.  
  5. A person must not enter or remain in a polling booth, counting centre or premises at which an application may be made for a pre-poll vote without the permission of the person in charge of the premises, with the exception of polling officials, scrutineers or electors who enter the polling booth for the purpose of voting, and who should remain no longer than is reasonably necessary to do so.
  6. A person who contravenes any of these things at a polling booth may be lawfully removed from the polling booth by a police officer or a person authorised by the person in charge of the premises.
  7. If a person is found guilty of this offence, a court may impose a penalty of 5 penalty units.

Possible repercussions for persons who commit offences

  1. If the AEC becomes aware that a person is breaching the provisions of the Act during polling, any or all of the following actions may be taken.

Removal from the premises

  1. Section 348 provides that where a person commits misconduct in a polling booth, counting centre or premises at which an application may be made for a pre-poll vote, the person in charge of the premises may direct that person to leave the premises or have the person removed from the premises.

Injunctions

  1. Section 383 of the Act provides that the Federal Court may grant an injunction to (amongst other things) prohibit a person from engaging in conduct that constitutes a contravention of the law in relation to elections.
  2. The AEC and candidates in the election may make an application for an injunction to the Federal Court. If the AEC is informed or becomes aware that a person may have committed an offence, the AEC determines whether it is appropriate in the circumstances to apply for an injunction. The Federal Court is able to order injunctions at short notice on Election Day.
  3. If an injunction is granted against a person, failure to comply with the injunction order may constitute contempt of court, for which the Federal Court can order arrest and detention.

Prosecutions

  1. When the AEC becomes aware of a person engaging in activity that may constitute a breach of an offence provision, the AEC may refer the matter to the AFP for investigation. The AFP may then refer the matter to the Commonwealth Director of Public Prosecutions for consideration, in accordance with the Commonwealth Prosecution Policy, as to whether a prosecution is initiated.

Court of Disputed Returns

  1. There is a risk that if a person has engaged in an 'illegal practice' (which is defined in section 352 to be a contravention of the Act or Regulations) the election of a candidate could also be challenged in the Court of Disputed Returns (CDR). Section 362 gives the CDR the power to void an election on the grounds of an illegal practice where the Court is satisfied that the results of the election was likely to have been affected as a result of the practice (see Mitchell v Bailey (No.2) [2008] FCA 692 and Scott-Irving v Oakeshott [2009] FCA 487).

Conclusion

  1. Anyone with an interest in the laws on offences relating to polling, or their application in particular circumstances, should consult the exact provisions of the Act and seek their own legal advice.
  2. Anyone who believes that the law governing polling place offences should be changed may make a submission to the Joint Standing Committee on Electoral Matters at Parliament House.
Back to top