Candidates Handbook: Appendix 1: Electoral offences

Updated: 30 May 2018

The Act

  • Part XXI, 'Electoral offences'
  • Part XXA, 'Authorisation of electoral matter'
  • Part XXIII, 'Miscellaneous'

Australia's democratic institutions and procedures have strong protection under the law, not only under the Act but also other legislation. This appendix lists the most important of these offences and the penalties they incur. As a candidate, you are urged to make yourself familiar with the details of the various electoral offences.

The Act, s.383

Candidates and the AEC are able to seek injunctions from the Federal Court to restrain conduct that would constitute a breach or an anticipated breach of any Commonwealth law relating to elections, or constitute an offence against those laws, or to require an activity to be performed in order to avoid such a breach or offence. This includes conduct in relation to electoral communications.

Offences during the election period

Section Offence Penalty Comment
Criminal Code Act 1995
Part 7.4 Knowingly making a false or misleading statement in any claim for enrolment, or in any declaration, application or return 12 months imprisonment False or misleading statements made in relation to Part XX of the Act (election funding and financial disclosure) will continue to be prosecuted under the specific offences contained in that Part of the Act
Criminal Code Act 1995
Part 7.7 Forging and uttering a nomination paper or a ballot paper 10 years imprisonment (maximum) Certain offence provisions (such as s.29 of the Crimes Act 1914 relating to the destruction of Commonwealth property) are also relevant to the electoral process
Commonwealth Electoral Act 1918
s.325A Influencing the vote of a patient in, or resident at, a hospital or nursing home Imprisonment for 6 months or 10 penalty units, or both. Applies to the proprietor (or an employee of the proprietor or member of the body corporate) of a hospital or nursing home
s.326(1) and (2) Bribery Imprisonment for 2 years or 50 penalty units, or both. Election campaign declarations of public policy or promises of public action are not regarded as bribery
s.327(1) Hindering or interfering with the free exercise or performance by any other person of any political right or duty relevant to an election Imprisonment for 6 months or 10 penalty units, or both. Offences during the election period
s.327(2) Discriminating against another person for making a donation to a political party, a candidate or a group in an election or by-election by:
  • denying them access to membership of any trade union, club or other body
  • not allowing them to work or continue to work
  • subjecting them to any form of intimidation or coercion
  • subjecting them to any other detriment
If the offender is a natural person - imprisonment for 2 years or 50 penalty units, or both; or if the offender is a body corporate - 200 penalty units.  

Bribery

Subsections 326(1) and (2) of the Act are reproduced below:

  1. A person shall not ask for, receive or obtain, or offer or agree to ask for, or receive or obtain, any property or benefit of any kind, whether for the same or any other person, on an understanding that:
    1. any vote of the first-mentioned person;
    2. any candidature of the first-mentioned person;
    3. any support of, or opposition to, a candidate, group of candidates or a political party by the first-mentioned person;
    4. the doing of any act or thing by the first-mentioned person the purpose of which is, or the effect of which is likely to be, to influence the preferences set out in the vote of an elector; or
    5. the order in which the names of candidates nominated for election to the Senate whose names are included in a group in accordance with section 168 appear on a ballot paper;
    will, in any manner, be influenced or affected.

PENALTY: Imprisonment for 2 years or 50 penalty units, or both.

  1. A person shall not, with the intention of influencing or affecting:
    1. any vote of another person;
    2. any candidature of another person; or
    3. any support of, or opposition to, a candidate, group of candidates or apolitical party by another person;
    4. the doing of any act or thing by another person the purpose of which is, or the effect of which is likely to be, to influence the preferences set out in the vote of an elector; or
    5. the order in which the names of candidates nominated for election to the Senate whose names are included in a group in accordance with section 168 appear on a ballot paper;
    give, or confer, or promise or offer to give or confer, any property or benefit of any kind to that other person or to a third person.

PENALTY: Imprisonment for 2 years or 50 penalty units, or both.

Offences on election day

You and your supporters should also be aware that what a person does, or fails to do, on election day may be against the law.

Section Offence Penalty Comment
Commonwealth Electoral Act 1918
s.245 Failure to vote without valid and sufficient reason 1 penalty unit  
s.335 Exhibiting or leaving a how-to-vote card in any polling booth 5 penalty units  
s.338 Marking a vote or making any other mark on a ballot paper issued to another elector Imprisonment for 6 months or 10 penalty units, or both The Act expressly authorises certain exceptions, such as assistance to voters who are incapacitated or have low literacy skills
s.339(1)(a) Impersonating any person with the intention of securing a ballot paper to which the impersonator is not entitled Six months imprisonment  
s.339(1)(b) Impersonating any person with the intention of voting in that other person's name Six months imprisonment  
s.339(1)(d) Fraudulently putting any ballot paper or other paper into the ballot box Six months imprisonment  
s.339(1)(e) Fraudulently taking any ballot paper out of any polling booth or counting centre Six months imprisonment  
s.339(1)(g) Supplying ballot papers without authority Six months imprisonment  
s.339(1)(h) Doing an act that results in the unlawful destruction of, taking of, opening of, or interference with, ballot boxes or ballot papers Six months imprisonment  
s.339(1A) Voting more than once in the same election 10 penalty units.  
s.339(1C) Intentionally voting more than once in the same election 60 penalty units or 12 months imprisonment, or both.  
s.339(2) Engaging in any act that results in the defacement, mutilation, destruction or removal of any notice, list or other document affixed by, or by the authority of, any DRO 5 penalty units  
s.340(1) and (1A) Canvassing for, or soliciting votes, or displaying or exhibiting any non-official sign within six metres of the entrance of a polling place or mobile polling team 5 penalty units Applies to party workers, scrutineers and candidates' representatives. When a building used as a polling place is situated in enclosed grounds and the DRO has authorised the officer-in-charge to display at each entrance a notice signed by the DRO stating that the grounds are part of the polling place, those grounds are considered to be part of the polling place for the purposes of these offences
s.341 Wearing or displaying in a polling place any badge or emblem of a candidate or political party 10 penalty units Applies to electoral officials and scrutineers
s.348 Engaging in misconduct; disobeying a lawful direction of the person in charge; or entering or remaining in specified places without the permission of the person in charge 5 penalty units Applies to any early voting office, any polling place on election day or any counting centre. An offender may be removed by the police or anyone else authorised by the person in charge

Please note that the penalties imposed under the Commonwealth Electoral Act 1918 are subject to sections 4AA and 4AB of the Crimes Act 1914 and as such the value of the penalty unit listed may increase from time to time. The value of 1 penalty unit as at March 2018 is $210. Unless otherwise specified, all penalties are the maximum able to be imposed upon conviction of the offence.

Electoral communications and authorisations

The Act, s.321D and s.329

The Commonwealth Parliament has determined that the Act should not regulate the content of political messages contained in electoral communications.

The intent of the Act is to promote free and informed voting at elections by enhancing:

  • the transparency of the electoral system,
  • the accountability of those persons participating in public debate relating to electoral matter,
  • the traceability of communications of electoral matter, and
  • to ensure that electoral communications do not mislead or deceive electors about the way in which a vote must be cast.

The AEC therefore has no role or responsibility in deciding whether political messages published or broadcast in relation to a federal election are true or untrue. The AEC does have a role however, in doing its best to ensure that electoral communications are properly authorised, so that electors can know who is responsible for the statements contained in them.

Complaints must be made in writing addressed to either the Deputy Electoral Commissioner or the Chief Legal Officer of the AEC in Canberra and the complainant should also provide as much information as possible to enable assessment of the alleged breach. If possible, complaints should be accompanied by an original copy of the communication from which the AEC can make a formal assessment of its compliance with the law.

If an original copy cannot be obtained, a copy of the entire document may be forwarded to the AEC. Similarly, in relation to a complaint about electoral communications on the internet, the complaint should, if possible, be accompanied by a printed copy of the web page, showing the communication, from which the AEC can make a formal assessment of its compliance with the law. If complaints with attachments are being sent to the AEC by email, some care needs to be taken to ensure that the attachments are less than 10 megabytes in size and that a read receipt is requested to ensure that they actually are received through the AEC’s systems firewall.

In the absence of a copy of the electoral communication as it appeared on the internet being provided with the complaint, the AEC will require enough information about the internet site in order to locate the communication and make an assessment regarding compliance with the Act.

Information relevant to a complaint, allegation or investigation that is, or could become, subject to Part XXA or Part XXI proceedings (dealing with offences), will not be provided to any person not directly involved with the matter. In all cases after a complaint has been laid, the AEC will not provide any further information to the complainant until the investigation has been completed and any subsequent legal proceedings have been completed. When appropriate the AEC will write to the complainant advising of its decision and actions

For more detailed information on the regulation of electoral communcations, you should refer to the Electoral Backgrounder: Electoral communications and authorisation requirements.

Photographers and media

Photographers and members of the media or their equipment must not hinder, inconvenience or delay any polling staff or voters. No photographs may be taken of a person recording a vote that would in any way identify how the person has voted.

Anyone arranging for photographers or media to visit polling places should contact the DRO in sufficient time to enable arrangements to be made with the officer-in-charge at the relevant polling place.

Members of the media or photographers must have the permission of the DRO before visiting a polling place, and they must have the permission of the relevant DRO and the institution concerned before visiting any place where mobile polling is being conducted.

For information, including the guidelines on media coverage in polling places, is available on the AEC website or from AEC national and state offices.

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