Electoral Backgrounder - polling place offences

Updated: 15 March 2018

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

Compulsory voting s. 245

6. 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.

7. 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.

8. If a person 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).

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

9. 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.

10. A person found guilty of this offence will be liable of a penalty of imprisonment for six months, or 10 penalty units, or both.

Bribery s. 326

11. A person must not 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.

12. A person found guilty of this offence will be liable of a penalty of imprisonment for two years, or 50 penalty units, or both.

13. 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.

14. A person found guilty of this offence will be liable of a penalty of imprisonment for 2 years or 50 penalty units, or both.

Interference with political liberty s. 327

15. 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.

16. A person found guilty of this offence will be liable of a penalty of imprisonment for six months, or 10 penalty units, or both.

17. 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.

18. If the offender is a natural person – they will be found liable of a penalty of imprisonment for 2 years or 50 penalty units, or both.

19. If the offender if a body corporate, they will be found liable of a penalty of up to 200 penalty units.

Misleading or deceptive publications s. 329

20. A person must not print, publish or distribute 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.

21. A person found guilty of this offence may be subject to 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.

General offences in relation to ballot papers s. 339

22. 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.

23. A person found guilty of one of these offences may be imprisoned for six months.

24. A person who votes more than once in an election is guilty of an offence which carries a penalty of 10 penalty units, while a person who intentionally votes more than once in the same election is guilty of an offence which carries a penalty of 60 penalty units, or imprisonment for 12 months, or both.

25. 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.

26. A person found guilty of this offence may be subject to a penalty up to 5 penalty units.

Canvassing near polling booths s. 340

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

27. If a person engages in any of the following activities within a polling booth, or within six metres of the entrance to a polling booth on election day, the person is guilty of an offence:

  • 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.

28. A person found guilty of these offences can be subject to a penalty up to 5 penalty units.

29. 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, then if the activity is audible within a polling booth or within six metres from the entrance to the polling booth, the person is guilty of an offence.

30. A person found guilty of this offence currently can be subject to a penalty up to 5 penalty units.

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

31. 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.

32. A person found guilty of this offence can be subject to a penalty up to 10 penalty units.

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

33. Any person who exhibits or leaves 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, will be committing an offence.

34. A person found guilty of this offence can be subject to a penalty up to 5 penalty units.

35. 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

36. 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.

37. A person found guilty of this offence may be liable for a period of imprisonment not exceeding 6 months, or  a fine not exceeding 10 penalty units, or both

Unlawfully marking ballot papers s. 338

38. 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.

39. A person found guilty of this offence can be fined up to 10 penalty units, or six months imprisonment, or both.

Disobeying lawful direction of the person in charge of polling premises s. 348

40. The person in charge of a polling booth is the presiding officer or the substitute presiding officer. A person in charge of an early voting centre is the Divisional Returning Officer or early voting officer.

41. In a polling booth or early voting centre, a person must not commit misconduct or disobey a lawful direction given by the person in charge of the premises.

42. A person must not enter or remain in a polling booth or early voting centre 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.

43. 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.

44. If a person is prosecuted and found guilty of this offence, they may be subject to a penalty up to 5 penalty units.

Officers and scrutineers to observe secrecy s. 323

45. 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.

46. A person found guilty of this offence may be subject to a penalty of up to 10 penalty units,  imprisonment for six months, or both.

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

47. 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.

48. The penalty prescribed for breaching this provision can be subject to a penalty of up to 10 penalty units, imprisonment for six months, or both.

49. 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.

50. 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.

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

51. 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.

52. The penalty for breaching this provision is subject to a penalty up to 10 penalty units.

Possible repercussions for persons who commit offences

53. 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

54. Section 348 provides that where a person commits misconduct in a polling booth, counting centre or early voting centre, the person in charge of the premises may direct that person to leave the premises or have the person removed from the premises.

Injunctions

55. 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.

56. 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.

57. 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

58. 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

59. 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

60. 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.

61. The Commonwealth Electoral Act 1918 is available on the Australian Government’s Federal Register of Legislation website. AEC parliamentary submissions relating to electoral law can be accessed through the AEC website.

62. 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.

Endnotes

The Commonwealth Electoral Act 1918 can be accessed through any major public library, or the Australian Government’s Federal Register of Legislation.

Further information in relation to compliance with the Act is set out in the AEC's Electoral Backgrounder publications.

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