Electoral Backgrounder - polling place and other offences

Updated: 3 March 2024

Definitions

When describing offences, the Electoral and Referendum Act 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 (Electoral Act) and the conduct of referendums under the Referendum (Machinery Provisions) Act 1984 (Referendum 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 under the Electoral Act

This section of the Backgrounder provides introductory information in relation to offences can be found in the Electoral Act.

Offences applying to officers

  1. Officers include any member of the staff of the Electoral Commission who is a delegate of the Electoral Commissioner.

Officers and scrutineers to observe secrecy s. 323

  1. 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.

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 any venue where polling is conducted, such as a polling booth or pre-polling voting office.
  2. If a person is found guilty of this offence, a court may impose a penalty of 10 penalty units.

Offences applying to scrutineers

  1. Please note that all offences which apply to persons also apply to scrutineers.

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 scrutineer is found guilty of either of these offences, 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, is guilty of 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) or the state or territory police force.

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 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 attends a counting centre during early opening and sorting of pre-poll ballot papers in accordance with subsection 274(2AA) must not disclose or communicate to persons outside the counting centre before the close of the poll any information that relates to the early opening and sorting. If a scrutineer is found guilty of this offence, a court may impose a penalty of imprisonment for 6 months or 10 penalty points, or both.
  5. 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 or counting centre by a member of the Australian Federal Police (AFP), the state or territory police force, or another person authorised by the presiding officer.

Officers and scrutineers to observe secrecy s. 323

  1. 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.

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

  1. Officers and scrutineers are prohibited from wearing or displaying a badge or emblem of a candidate or political party in a polling booth on polling day or on a day to which the polling is adjourned for the election, or in a pre-poll voting office at any time during which applications for pre-poll votes may be made, or pre-poll ordinary voting is available at the office.
  2. If a person is found guilty of this offence, a court may impose a penalty of 10 penalty units.

Offences applying to electors

  1. Please note that all offences which apply to persons also apply to electors.

Compulsory enrolment s. 101  

  1. A person is guilty of an offence if the person is entitled to be enrolled for a subdivision and the person fails to enrol. Note that this offence does not apply to person under the age of 18 years old.
  2. A person is entitled to update their address on the electoral roll after living at a new address for one month. A person is guilty of an offence if a person fails to update their address within 21 days of being entitled to update their address on the electoral roll.
  3. If a person is found guilty of this offence, a court may impose a fine not exceeding 1 penalty unit.

Compulsory voting s. 245

  1. It is an offence if an elector fails to vote at an election without a valid and sufficient reason. For more information on compulsory voting see Electoral Backgrounder: Compulsory voting.
  2. 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).
  3. The effect of sections 231, 233 and 234 is that the voter is required to take the issued ballot paper(s) and to retire to an unoccupied polling booth to mark their vote in private (unless otherwise prescribed). It is not sufficient compliance to merely have your name marked off and then to leave the polling booth.

Multiple Voting s. 339

  1. The offence of multiple voting is a type of electoral fraud set out in sections 339(1A) and 339(1C) of the Electoral Act.
  2. A person commits an offence if the person votes more than once in the same election.
  3. If a person is found guilty of this offence, a court may impose a penalty of 10 penalty units. A multiple voting offence under s. 339(1A) of the Electoral Act is a strict liability offence.
  4. A person also commits an offence under s. 339(1C) of the Electoral Act if the person intentionally votes more than once in the same election. If a person is found guilty of this offence, a court may impose a penalty of 60 penalty units or imprisonment for 12 months, or both.

Offences applying to any person

Compulsory enrolment s. 101  

  1. A person commits an offence if the person is entitled to be enrolled for a subdivision and the person fails to enrol. Note that this offence does not apply to person under the age of 18 years old.
  2. A person commits an offence if the person fails to update their enrolment address after living at a new address for a period of one month.
  3. If a person is found guilty of this offence, a court may impose a fine not exceeding 1 penalty unit.

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.

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 Electoral Act. Examples of conduct that may fall under this prohibition include, violence, obscene or discriminatory abuse, property damage and harassment or stalking.
  2. If a person is found guilty of this offence, a court may impose a penalty of imprisonment for three years, or 100 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 authorise to be printed, published or distributed 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 Electoral Act. The scope of what amounts to "publish" includes not just 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 100 penalty units or a period of imprisonment not exceeding three years, or both. A body corporate found guilty of this offence may be subject to a penalty not exceeding 500 penalty units.

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.

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:
    1. Official instructions, for example posters put up by the AEC to assist voters in voting formally (so that the vote is counted); and
    2. 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 satisfies the presiding officer that they have sight impairment, physical disability or literacy issues such that they are unable to vote without assistance, the elector may be allowed to 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.

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 Electoral Act), the person commits an offence.

Other general offences in relation to ballot papers s. 339

  1. Subsection 339(1) of the Electoral 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
    • impersonating any person with the intention of voting in that person's name
    • fraudulently doing an act that results in the destruction, defacement or other corruption of any nomination or ballot paper
    • fraudulently putting any ballot paper or other paper into the ballot-box
    • fraudulently taking any ballot paper out of any polling booth or counting centre
    • supplying ballot papers without authority
    • doing an act that results in the unlawful destruction of, taking of, opening of, or interference with, ballot-boxes or ballot papers.

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

  1. 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.
  2. 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.

    If a person is found guilty of this offence a court may impose a penalty of 5 penalty units.

  3. 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. If a person is found guilty of this offence, a court may impose a penalty of 5 penalty units.

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. It may be an offence to cause the publication of an audio or video recording in such premises without the permission of the person in change.
  3. The person in charge of a polling booth is the presiding officer or the substitute presiding officer.
  4. The person in charge of a counting centre is the Australian Electoral Officer, Divisional Returning Officer or Assistant Returning Officer.
  5. 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.
  6. 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.
  7. 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.
  8. If a person is found guilty of this offence, a court may impose a penalty of 5 penalty units.

Possible outcomes against persons who commit offences

  1. If the AEC becomes aware that a person is breaching or has breached the provisions of the Electoral Act during polling, many actions may be taken. These are listed below.

Removal from the premises

  1. Section 348 of the Electoral Act provides where a person commits misconduct, disobeys a lawful direction or enters or remains at a polling booth, counting centre or premises in Australia at which an application may be made for a pre-poll vote without permission of the person in charge, may be removed from the premises by a police officer or by an authorised person.

Injunctions

  1. Section 383 of the Electoral Act provides that the Federal Court may grant an injunction to (amongst other things):
    • restrain a person from engaging in conduct that constituted, constitutes or would constitute a contravention or an offence against the Electoral Act or any other law of the Commonwealth in its application to elections
    • require a person to do any act or thing to comply with the Electoral Act or any other law of the Commonwealth in its application to elections
    • restrain a carriage service provider from supplying a listed carriage service to a notifying entity and/or foreign campaigner
    • restrain a broadcaster from broadcasting electoral matter that contravenes or proposes to contravene the Electoral Act
  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.

Designated Elector

  1. If an elector is convicted or reasonably suspected of voting more than once in the same federal election (intentionally or otherwise), the Electoral Commissioner may declare them to be a ‘designated elector’ and restrict the methods in which they may vote in future federal elections.
  2. A designated elector may only vote in a federal election by means of declaration vote. This provides a mechanism for ensuring that only the first declaration vote received in a federal election from the designated elector is admitted to the scrutiny process. For more information, please see the Electoral Backgrounder: Enrolment fraud and multiple voting.

Prosecution

  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.
  2. Authorised officers of the AEC may prosecute persons who fail to vote at an election without a valid and sufficient reason as per section 245(16) of the Electoral Act. For more information, please see the Electoral Backgrounder: Compulsory voting.

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 Electoral 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).

Offences under the Referendum Act

  1. This section of the Backgrounder provides introductory information in relation to offences can be found in the Referendum Act.

Offences applying to officers

  1. Officers include any member of the staff of the Electoral Commission who is a delegate of the Electoral Commissioner.

Officers and scrutineers to observe secrecy s. 116

  1. 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 Referendum Act) that is likely to enable the identification of the elector.
  2. If a person is found guilty of this offence for a referendum, a court may impose a penalty of imprisonment for six months, or 10 penalty units or both.

Displaying badges or emblems in polling booths s. 132

  1. On voting day for a referendum, no officer or scrutineer is allowed to wear or display any badge or emblem in support of or in opposition to a proposed law for the alteration of the Constitution in any venue where polling is conducted, such as a polling booth or pre-polling voting office
  2. If a person is found guilty of this offence, a court may impose a penalty of 10 penalty units.

Offences applying to scrutineers

  1. Please note that all offences which apply to persons also apply to scrutineers.

Scrutineers influencing or communicating with voters at pre-poll voting offices s. 73CB

  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 scrutineer is found guilty of this offence in a referendum, a court may impose a penalty of imprisonment for 6 months.
  3. The Referendum 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, is guilty of 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) or the state or territory police force.

Scrutineers influencing or communicating with voters in polling booths s. 28

  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 for a referendum, a court may impose a penalty of imprisonment for six months, or 10 penalty units, or both.
  3. The Acts require 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 attends a counting centre during early opening and sorting of pre-poll ballot papers in accordance with subsection 90(1A) of the Referendum Act must not disclose or communicate to persons outside the counting centre before the close of the poll any information that relates to the early opening and sorting. If a scrutineer is found guilty of this offence for a referendum, a court may impose a penalty of imprisonment for 6 months or 10 penalty points, or both.
  5. 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 or counting centre by a member of the Australian Federal Police (AFP), the state or territory police force, or another person authorised by the presiding officer.

Officers and scrutineers to observe secrecy s. 116

  1. 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 Referendum Act) that is likely to enable the identification of the elector.
  2. If a person is found guilty of this offence for a referendum, a court may impose a penalty of imprisonment for six months, or 10 penalty units or both.

Displaying badges or emblems of candidates in polling booths s. 132

  1. Officers and scrutineers are prohibited from wearing or displaying a badge or emblem in support of or in opposition to a proposed law for the alteration of the Constitution in a polling booth on voting day or on a day to which the taking of votes of the electors at the referendum has been adjourned, or in a pre-poll voting office at any time during which applications for pre-poll votes may be made, or pre-poll ordinary voting is available at the office.
  2. If a person is found guilty of this offence, a court may impose a penalty of 10 penalty units.

Offences applying to electors

  1. Please note that all offences which apply to persons also apply to electors.

Compulsory enrolment s. 101 Electoral Act

  1. A person commits an offence if the person is entitled to be enrolled for a subdivision and the person fails to enrol. Note that this offence does not apply to person under the age of 18 years old.
  2. A person is entitled to update their address on the electoral roll after living at a new address for one month. A person is guilty of an offence if a person fails to update their address within 21 days of being entitled to update their address on the electoral roll.
  3. If a person is found guilty of this offence, a court may impose a fine not exceeding 1 penalty unit.

Compulsory voting s. 45

  1. A person commits an offence if they fail to vote at a referendum without a valid and sufficient reason. For more information on compulsory voting see Electoral Backgrounder: Compulsory voting.
  2. 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).
  3. The effect of sections 33, 35 and 36 of the Referendum Act is that the voter is required to take the issued ballot paper(s) and to retire to an unoccupied polling booth to mark their vote in private (unless otherwise prescribed). It is not sufficient compliance to merely have your name marked off and then to leave the polling booth.

Multiple Voting s. 130(1A)-(1C)

  1. The offence of multiple voting is a type of electoral fraud set out in s. 130(1A) of the Referendum Act.
  2. A person is guilty of an offence if the person votes more than once in the same referendum. If a person is found guilty of this offence, a court may impose a penalty of 10 penalty units. A multiple voting offence under s. 130(1A) of the Referendum Act is a strict liability offence.
  3. A person is also guilty of an offence under s. 130(1C) of the Referendum Act if the person intentionally votes more than once in the same referendum. If a person is found guilty of this offence, a court may impose a penalty of 60 penalty units or imprisonment for 12 months, or both.

Offences applying to any person

Obligations of persons present when pre-poll vote cast s. 73J

  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 for a referendum, a court may impose a penalty of 10 penalty units.

Influencing the votes of hospital patients or residents of nursing homes s. 118A

  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 for a referendum, a court may impose a penalty of imprisonment for six months, or 10 penalty units, or both.

Bribery s. 119

  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. In a referendum, a person shall not, with the intention of influencing the vote of a person or inducing any person to support or oppose a proposed law for the alteration of the Constitution, give, or promise to offer or give, any property or benefit of any kind to another person.
  3. 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. 120

  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 a referendum under the Referendum Act. Examples of conduct that may fall under the prohibitions include, violence, obscene or discriminatory abuse, property damage and harassment or stalking.
  2. If a person is found guilty of either offence, a court may impose a penalty of imprisonment for three years, or 100 penalty units, or both.

Misleading or deceptive publications s. 122

  1. A person must not publish or distribute, or cause, permit or authorise to be printed, published or distributed any matter or thing during a referendum period that is likely to mislead or deceive an elector in relation to the casting of a vote in a referendum under the Referendum Act.
  2. The scope of what amounts to "publish" includes not just print media, but also by radio, television, internet or telephone.
  3. If a person is found guilty of this offence, a court may impose a penalty not exceeding 100 penalty units or a period of imprisonment not exceeding three years, or both. A body corporate found guilty of this offence may be subject to a penalty not exceeding 500 penalty units.

Making false statements to voters about enrolment s. 123

  1. A person commits an offence if, on voting day for a referendum, 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.

Leaving how-to-vote cards in polling booths s. 126

  1. It is an offence under the Referendum Act to display or leave at a polling booth a card or paper that contains a recommendation on how an elector should vote at a referendum, 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:
    1. Instructions displayed by persons authorised to display them, for example posters put up by the AEC to assist voters in voting formally (so that the vote is counted), and
    2. Cases where a person is appointed by an elector to assist that elector to vote under the provisions in section 36 of the Referendum Act. Section 36 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 126.

Unlawfully marking ballot papers s. 129

  1. A person commits an offence if they make a mark or writes on a ballot paper of another elector (unless the person is expressly authorised by the Referendum Act).

General offences in relation to ballot papers s. 130

  1. Subsection 130(1) of the Referendum 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,
    • impersonating any person with the intention of voting in that person's name
    • fraudulently doing an act that results in the destruction or defacement of a ballot paper or other document relating to a referendum
    • fraudulently putting any ballot paper or other paper into the ballot-box
    • fraudulently taking any ballot paper out of any polling booth or a place where the scrutiny is being conducted
    • supplying ballot papers without authority
    • doing an act that results in the unlawful destruction of, taking of, opening of, or interference with, ballot-boxes or ballot papers.
  1. If a person is found guilty of one of these offences, a court may impose a penalty of imprisonment for 6 months or 10 penalty units, or both.

Canvassing near polling booths and pre-poll voting places s. 131

  1. 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.
  2. For a referendum, a person must not engage in any of the following activities within 6 metres of an entrance to a polling booth on voting day, or at a pre-poll voting office:
    • Inducing an elector to vote in a particular way;
    • Inducing an elector not to vote; or
    • Exhibiting any notice or sign (other than an official notice) that relates to a referendum.
  3. If a person is found guilty of this offence a court may impose a penalty of 5 penalty units.
  4. 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. If a person is found guilty of this offence, a court may impose a penalty of 5 penalty units.

Behaviour at polling booths etc s. 135

  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. It may be an offence to cause the publication of an audio or video recording in such premises without the permission of the person in change.
  3. The person in charge of a polling booth is the presiding officer in a referendum.
  4. The person in charge of a counting centre is the Australian Electoral Officer, Divisional Returning Officer or Assistant Returning Officer.
  5. 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.
  6. 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.
  7. 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.
  8. If a person is found guilty of this offence, a court may impose a penalty of 5 penalty units.

Possible outcomes against persons who commit offences

  1. If the AEC becomes aware that a person is breaching or has breached the provisions of the Referendum Act during polling, many actions may be taken. These are listed below.

Removal from the premises

  1. Section 135 of the Referendum Act 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 139 of the Referendum 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 referendums.
  2. The AEC 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 voting 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.

Designated Elector

  1. If an elector is convicted or reasonably suspected of voting more than once in the same referendum (intentionally or otherwise), the Electoral Commissioner may declare them to be a ‘designated elector’ and restrict the methods in which they may vote in future referendums.
  2. A designated elector may only vote in a referendum by means of declaration vote. This provides a mechanism for ensuring that only the first declaration vote received in a referendum from the designated elector is admitted to the scrutiny process. For more information, please see the Electoral Backgrounder: Enrolment fraud and multiple voting.

Prosecution

  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.
  2. Authorised officers of the AEC may prosecute persons who fail to vote at a referendum without a valid and sufficient reason. For more information, please see the Electoral Backgrounder: Compulsory voting.

Court of Disputed Returns

  1. The High Court has jurisdiction under section 103 of the Referendum Act to declare a referendum void. Further circumstances for this process are outlined in Part VIII of the Referendum Act.

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.

Version History

Version Purpose

3 March 2025

To address amendments to the Electoral Act and Referendum Act by the Electoral Legislation Amendment (Electoral Reform) Bill 2024

18 September 2023

Update text to include polling place offences under the Referendum (Machinery Provisions) Act 1984.

11 May 2023

Update text relating to s 101 of the Electoral Act for accuracy.

8 April 2022

Offences categorised by offender in order to provide clarity.

23 February 2022

To address amendments to Part XXI of the Electoral Act by the Electoral Legislation Amendment (Foreign Influences and Offences) Act 2022 and add further clarity to the offences.

29 September 2021

To address amendments to s 218 of the Electoral Act by the Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Act 2021 to include an obligation for scrutineers to maintain secrecy in relation to results or possible results indicated by sorting before the close of poll.  

To address amendments to Part XXI of the Electoral Act by the Electoral Legislation Amendment (Electoral Offences and Preventing Multiple Voting) Bill 2021 to:

  • increase the penalty and include an example of conduct for an offence of interfering with political liberty; and
  • enable the AEC to declare an elector to be a ‘designated elector’ on the basis of a reasonable suspicion that the elector has voted more than once in an election.