The AEC has only limited powers with respect to regulating the content or truth of electoral advertising.
There is a criminal offence in s 329(1) of the Electoral Act:
A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit or authorize 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.
Section 329(1) of the Electoral Act makes it a criminal offence to print, publish or distribute, or cause, permit or authorise to be printed, published or distributed, any matter or thing during the relevant period that is likely to mislead or deceive an elector in relation to the casting of a vote. The Federal Court has found that the phrase “likely to mislead or deceive an elector” means a real chance of misleading or deceiving any elector, even one who is unintelligent, or gullible, or naïve.
Section 329 applies to communications that are printed, broadcast on radio or television, on the internet or by telephone.
The ‘relevant period’ starts from the issue of the writ for an election and ends at the latest time in which an elector in Australia can enter the polling booth and cast their vote (see definition in s 287(1) of the Electoral Act).
Yes. Section 329(5) provides that for a person alleged to have committed an offence against s 329(1), it is a defence if it is proved that the person did not know, and could not reasonably be expected to have known, that the matter or thing was likely to mislead an elector in relation to the casting of a vote.
Yes. Section 122 of the Referendum Act creates an equivalent offence in relation to referendums.
The AEC also does not regulate the content or truth of advertising during referendums, with the limited exception of this offence in s 122 of the Referendum Act.
Note: the relevant period for a referendum starts from the issue of the writ for a referendum and ends at the latest time in which an elector in Australia can enter the polling booth and cast their vote.
Note: the same defence is available.
The maximum penalty for a contravention of both s 329(1) and s 122(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.
At 1 January 2023, a penalty unit was $275, so a contravention attracts a penalty of up to $27,500 for an individual and up to $137,500 for a body corporate.
A poster is being distributed outside 6 metres from the entrance to a polling booth. It reads “Important: this is the correct way to vote” and it numbers the six candidates for the division in an order of preference (1 through 6). The poster has no candidate or Party branding and all of the text appears in the AEC’s corporate colours.
The AEC’s position is that this is likely to be misleading or deceptive in relation to the casting of a vote. It is likely that the poster misleads an elector to think that they must vote in the order of preference depicted, or otherwise their vote will not count. This likelihood is increased by the poster seeming to be an official communication from the AEC.
A candidate for the House of Representatives distributes a how-to-vote card which has a tick in the box against their name. The boxes against the other candidates are blank.
The AEC’s position is that this is likely to be misleading or deceptive in relation to the casting of a vote. The Electoral Act clearly requires full preferential voting; the elector is to mark their first preference as '1’ on the ballot paper and then number every single candidate consecutively, in order of preference. Incomplete ballot papers are informal and unable to be counted.
A corflute has been placed outside 6 metres from the entrance to a pre-poll voting centre which depicts candidate from Party A as being part of Party B by using Party B’s branding.
The AEC’s position is that this is likely to be misleading or deceptive in relation to the casting of a vote. It is likely that the corflute may lead an elector to believe that the candidate belongs to Party B instead of their actual party, Party A. This could mislead an elector as to how to cast a vote for the candidate or how to cast a vote for Party A or Party B.
The AEC strongly encourages anyone planning electoral communication activities at a federal election or referendum to avoid using the colour purple or any other branding elements that could be perceived to imitate the AEC. Anyone concerned about whether their communications could be misleading or deceptive should seek independent legal advice. The AEC cannot provide external legal advice.
The AEC investigates these communications on a case-by-case basis. As contravention of s 329(1) of the Electoral Act and s 122(1) of the Referendum Act are criminal offences, the AEC may refer these matters to the Australian Federal Police (AFP).
The AEC may ask the person responsible to cease distributing the communication. In addition, the AEC may refer a matter to the AFP. It is then a matter for the AFP to investigate and determine whether the person should be charged.
Aside from an AFP referral, the following actions may occur in relation to misleading or deceptive communications:
Several court cases have clarified the limited scope of section 329. Reflecting on the High Court decision in Evans v Crichton-Browne (1981) 147 CLR 169, the Federal Court held in Peebles v Honourable Tony Burke  FCA 838:
“It is clear from reading the entire reasons for judgment of the High Court in Crichton-Browne that the prohibition in s 329 concerns misleading or deceptive conduct which might affect the process of casting a vote rather than the formation of the political judgment about how the vote will be cast. That is, the section concerns conduct which might, for example, lead a voter either to fail to record a valid vote or to record a valid vote but not for the candidate or candidates of the voter's choice. An obvious example would be information which told a voter how to go about completing the ballot paper which was wrong and would result in the casting of an informal vote.”
In Garbett v Liu  FCAFC 241, the Federal Court considered purple and white signage (similar to the colours used by the AEC) placed adjacent to AEC signage on polling day, and written in Mandarin that translated as “Correct voting method”, “The right way to vote” or “The correct way to vote”. The Court considered:
“In s 329(1) the phrase “likely to mislead or deceive an elector” means a real chance of misleading or deceiving any elector, even one who is unintelligent, or gullible, or naïve. The phrase “in relation to the casting of a vote” is wide enough to encompass a matter or thing that contains a representation that for a valid vote to be cast an elector must vote in favour of a particular candidate or in a particular order of candidates.”
In Garbett v Liu the Court held purple and white signs were misleading or deceptive when: