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Australian Electoral Commission
Campaigning reminder distributed to all federally registered political parties: March 2022.
As Australia’s national electoral agency, the AEC plays the leading role in maintaining the integrity of the Australian electoral system. The AEC is responsible for conducting federal elections and referendums and maintaining the Commonwealth electoral roll in accordance with the Electoral Act. The AEC also undertakes a broad range of compliance and enforcement activities related to the Commonwealth Electoral Act 1918.
This page sets out recent compliance and enforcement actions of the AEC. An annual summary of significant enforcement activities the AEC has undertaken is also available in the AEC Annual Report.
In the event of an alleged contravention of Part XX or XXA of the Electoral Act, the AEC may, as an alternative to court proceedings, accept an enforceable undertaking given by the person who is alleged to have committed the contravention in accordance with Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act). An enforceable undertaking is used where the alleged contravention is of a serious nature.
An enforceable undertaking is a legally binding agreement between the AEC and the person who proposed the undertaking. Once accepted by the AEC, the enforceable undertaking obliges the person to carry out specific activities outlined in the enforceable undertaking.
Enforceable Undertakings that have been accepted by the AEC are published on the Transparency Register and outlined in the below table.
Name of party |
Date of acceptance |
Legislative provisions |
Enforceable undertaking |
|---|---|---|---|
Senator Pauline Hanson as party agent for Pauline Hanson’s One Nation |
15 June 2021 |
Commonwealth Electoral Act 1918 – section 317(1) |
Pauline Lee Hanson – Enforceable undertaking [PDF - 802KB] |
Ms Kim Swanson |
3 March 2021 |
Commonwealth Electoral Act 1918 – sections 304 and 309 |
Kim Swanson – Enforceable undertaking [PDF - 369KB] |
Mr Christopher James |
26 February 2021 |
Commonwealth Electoral Act 1918 – sections 304 and 309 |
Christopher James – Enforceable undertaking [PDF - 389KB] |
Mr Tony Pecora |
10 February 2021 |
Commonwealth Electoral Act 1918 – sections 304 and 309 |
Tony Pecora – Enforceable undertaking [PDF - 378KB] |
| Ms Briony Davis as financial controller for EMILY’s List | 21 October 2022 | Commonwealth Electoral Act 1918 – sections 134AEA(1), 316(5) and 317 | Briony Davis – Enforceable undertaking [PDF – 262KB] |
There are civil penalties for the offences in Parts XX and XXA of the Electoral Act. Section 384A of the Electoral Act provides that civil penalty provisions are enforceable under Part 4 of the Regulatory Powers Act. These offences include:
The Electoral Commissioner may apply to a relevant court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty.
Pecuniary penalty orders are published on the Federal Court’s Digital Law Library and outlined in the table below.
Name of Matter |
Date of Order |
Legislative provisions |
Judgment |
|---|---|---|---|
Electoral Commissioner v Futter [2021] FCA 876 |
29 July 2021 |
Commonwealth Electoral Act 1918 – section 304 and 309 |
|
Electoral Commissioner v Wharton (No 3) [2021] FCA 742 |
1 June 2021 |
Commonwealth Electoral Act 1918 – sections 304 and 309 |
|
| Electoral Commissioner of the Australian Electoral Commission v Laming (No 2) [2023] FCA 917 | 9 August 2023 | Commonwealth Electoral Act 1918 – section 321D(5) | Andrew Laming – Civil Penalties |
The AEC acknowledges the Federal Court decision regarding Mr Craig Kelly - a candidate in the 2022 federal election.
The Commonwealth Electoral Act 1918 (Electoral Act) requires the communication of electoral matter to be properly authorised. At the 2022 federal election the AEC investigated 900 communications. The AEC Legal Team identified 99 signs and printed communications that were assessed as being in breach of the authorisation requirements in s 321D of the Electoral Act. Warnings were sent to responsible persons or entities. Where acceptable action was taken to rectify or remove the improperly authorised communications, no further action was taken. At the 2022 federal election almost all AEC warnings were addressed swiftly and in full.
The AEC commenced civil proceeding against the former member for Hughes in relation to the candidate’s corflute signage displayed during the 2022 federal election. The AEC did not take the matter to court solely because of the failure to meet the authorisations requirements. Nor, contrary to some reporting, did this matter simply revolve around font sizes on posters. The AEC’s decision was made because the action taken by the candidate was, in the AEC’s view, inadequate and not undertaken in a satisfactory timeframe. This is how it varied from other matters where authorisers of signage complied under similar circumstances. Electoral signs for the former Member for Hughes that the AEC considered were not properly authorised were still on display at prepoll voting centres and on polling day despite our requests.
As a regulator, the AEC must weigh up apparent breaches of the Act and appropriate action - including regulating in a manner that results in fair and equitable treatment of all stakeholders. The AEC takes a graduated approach to regulation and enforcement around authorisations matters. The first step is education and, where an electoral communication is not compliant, the AEC requests the communication is authorised in accordance with the Electoral Act. When notified of non-compliance with the authorisation requirements: parties, candidates and their campaign workers almost always amend or remove the non-compliant communication. This is often done by the application of stickers with legible authorisations statements.
The AEC took further action against the former member for Hughes because, in the opinion of the AEC, there was a lack of apparent effective engagement or remediation. It had nothing to do with the identity of the authoriser but rather the actions that failed to occur. As a regulator, the AEC must apply the authorisation requirements and, where necessary test the scope of those requirements in Court.
It's inevitable that individuals will disagree with some decisions taken by an impartial regulator from time to time. Our political neutrality means that despite any potential criticism, the AEC has a responsibility to pursue legal remedies in specific circumstances where we believe there has been a breach of electoral legislation, and other forms of remediation have not been successful. Sometimes a court will agree with the legal position of the AEC, and on other occasions our applications will be rejected. The AEC fully respects the Court and its judgement – they are the ultimate arbitrator in applying the facts and the law of each matter they consider.
Like any Court decision, the ruling in this matter provides further guidance to the AEC and participants in the electoral process on the scope of authorisation requirements and our regulation of this area of law. The AEC will utilise the Federal Court’s judgement in order to further inform and refine our education and compliance activities around the authorisation of electoral and referendum campaign material moving forward.
Parts VIII, XV, XVA, XVI, XX, XXA and XXI of the Electoral Act establish the following electoral offences:
Compulsory enrolment requires all Australian citizens aged 18 years to be enrolled on the Commonwealth electoral roll. British subjects who were enrolled on 25 January 1984 are also entitled to remain on the electoral roll. Under section 101 of the Electoral Act, an eligible individual who fails to enrol to vote may be issued a fine not exceeding 1 penalty unit.
More on enrolment.
It is an offence under section 245 of the Electoral Act if the elector fails to vote at an election without a valid and sufficient reason for that failure. Electors who fail to vote will be sent a penalty notice seeking the confirmation whether the elector voted, has a valid and sufficient reason for not voting, or failing that pays an administrative penalty of $20.
Where an elector fails to do any of these things, the elector may be prosecuted in accordance with section 245(15) of the Electoral Act.
More on compulsory voting.
More on the Commonwealth electoral roll.
It an offence under section 189B of the Electoral Act to obtain the information about postal vote applicants without a permitted purpose. Senate or House of Representative candidates and registered political parties can be provided a list of postal vote applicants for the purposes listed in section 189B.
The Electoral Act requires that scrutineers must not interfere with voters, or attempt to influence any voter within a polling place and must not exhibit or leave any printed material that directs, instructs or is intended to influence an elector on how to vote. Scrutineers must not disclose any knowledge or information they have acquired about how an elector has voted. The penalty for misconduct by scrutineers is 6 months imprisonment or 10 penalty units, or both.
More on the role of scrutineers
With one limited exception the Electoral Act does not regulate truth in electoral advertising. Section 329(1) of the Electoral Act makes it an offence to print, publish or distribute, or cause, permit or authorise to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote. The maximum penalty for a contravention of section 329(1) is a fine not exceeding 100 penalty units or imprisonment for a period not exceeding three years, or both, for a person; or a fine not exceeding 500 penalty units for a body corporate.
More information on misleading or deceptive publications.
The Electoral Act also lists a range of other criminal offences including bribery in relation to voting or interfering with a voter attempting to vote.
More information on polling place and other offences can be found on our website here and in the Electoral Act.
The AEC may refer a person engaging in activity that may breach an offence 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.
Criminal investigations of contraventions, or possible contraventions of electoral offences can be found here on our website. Prosecutions of criminal offences are outlined in the below table:
Name of Matter |
Date of Report |
Legislative provisions |
Investigation Report |
|---|---|---|---|
Black Bull QLD Pty Ltd |
20 December 2018 |
Commonwealth Electoral Act 1918 – |
|
| R v Cheng FAN | 2 June 2022 | Commonwealth Electoral Act 1918 – Breach of section 329 |
AEC Statement: Sentencing of Mr Cheng Fan |
The Electoral Commission, and ‘candidates’ in an election, are able to seek an injunction under section 383 of the Electoral Act against any conduct that is contravening or would contravene the Electoral Act. A court ordered injunction can prohibit certain conduct or to require certain conduct to be performed.
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.
The AEC acknowledges the Traditional Owners of country throughout Australia and recognises their continuing connection to land, waters, culture and community. We pay our respects to Elders past, present and emerging.