Electoral Backgrounder: Influencing votes

Updated: 8 April 2010

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). The Act is available on the Attorney-General's Commonwealth Law 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.

3. This Backgrounder provides introductory information in relation to sections 325A, 326 and 327 of the Act. These sections provide that it is a criminal offence to engage in certain activities with the intention of influencing the votes of electors or interfering with the exercise of a person's political rights or duties relating to elections. Relevant provisions of the Act are detailed at page 7 of this Backgrounder.

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 information in this Backgrounder is set out under the following headings:

  • Electoral bribery
  • Influencing votes of patients in hospitals and nursing homes
  • Interference with political liberty
  • What to do if you think any of these offences are occurring
  • Summary
  • Suggestions for further reading
  • Relevant provisions of the Commonwealth Electoral Act 1918.

Electoral bribery

6. Section 326 of the Act provides that a person cannot ask for, receive or obtain, or give or confer, any property or benefit with the intention of influencing the vote or candidature of a person at a federal election. The electoral bribery offence does not apply to declarations of public policy or promises of public action.

7. The penalty for a contravention of s. 326 is $9 000 or imprisonment for two years, or both.

Electoral Backgrounders are published for the general information of AEC staff and people interested in electoral issues. Electoral Backgrounders present and analyse the issues on various topics, but do not promote a particular position or represent legal advice, and should not be relied upon as such. Anyone requiring legal advice should consult their own legal advisers.

8. There is some uncertainty about the scope of s. 326. The provision could arguably cover a wide range of factual circumstances. However, there is some judicial guidance provided by cases decided in state Supreme Courts on similar provisions in state legislation.

In Woodward v Maltby a candidate at the 1958 Victorian state election distributed books of matches to electors. The matchbooks bore a printed invitation to vote for him. The Victorian Supreme Court held that before the offence of electoral bribery could be held to apply in this case, it would have to be demonstrated that there was an intention by the candidate to induce the voter to vote for him by means of the gift, as distinct from the advertisement on it.

9. However, in Scott v Martin, the New South Wales Supreme Court found that a candidate had committed electoral bribery under the relevant state legislation because he had presented cheques to a number of community groups on behalf of the state government in the two weeks before the 1988 NSW state election. The Court found that the candidate intended to induce the members of the community groups, to which he distributed money, to vote for him by creating feelings of gratitude on their part, and this distribution of government funds to community groups thus constituted electoral bribery.

10. The findings in these cases suggest that s. 326 of the Act is directed at the giving or conferring or promising to a person of any property or benefit, by a candidate, with the direct intention of influencing or affecting the way a person votes by generating feelings of gratitude or obligation.

11. The majority of complaints concerning s. 326 made to the AEC relate to the provision of hospitality (in the form of, for example, tea and biscuits or sausage sizzles) at events organised by political parties and candidates in local communities. There have been no major cases of electoral bribery brought before the courts in the entire history of federal parliamentary elections, and therefore the law cannot be absolutely certain. It is arguable, however, that s. 326 may not be contravened by such hospitality, as it is reasonable to argue that the intention of the people providing the hospitality is not to directly influence voters or to buy their political allegiance, but to offer hospitality whilst facilitating political discussion.

12. It should be noted that if, as a result of election petition proceedings, the Court of Disputed Returns finds that an elected candidate has committed, or attempted to commit, bribery, the Court must declare the election of the candidate void under s. 362 of the Act.

Influencing votes of patients in hospitals and nursing homes

13. Section 325A(1) of the Act prohibits a proprietor or employee of a hospital or nursing home from doing anything with the intention of influencing the vote of a patient in, or resident at, the hospital or nursing home. For the purposes of the Act a 'proprietor' includes a person who is a member or officer of a body corporate that is the proprietor of a hospital or nursing home. Section 4 of the Act defines 'nursing home' as an institution, other than a hospital, in which infirm, ill or people who have disabilities needing continuing nursing care are provided with accommodation and nursing care. 'Hospital' is defined as including a convalescent home, or an institution similar to a hospital or to a convalescent home.

14. Section 325A was enacted in 1990 and has not yet been the subject of litigation. However the AEC understands that the intention of s. 325A is to ensure that hospital and nursing home patients and residents are not pressured to vote in a way that is contrary to their own personal preferences, or unduly influenced in the formation of their preferences.

15. For example, a nursing home proprietor may contravene the section if the proprietor chooses to accept electoral material from one candidate to be distributed to the residents in the home, but refuses to accept or distribute electoral material from other candidates, in order to influence the vote of a patient.

16. The penalty for a contravention of s. 325A(1) is $1 800 or imprisonment for six months, or both.

Interference with political liberty

17. Section 327(1) of the Act provides that a person shall 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. The penalty for a contravention of s. 327(1) is $1 800 or imprisonment for six months or both.

18. In addition, s. 327(2) provides that a person must not discriminate against another person on the ground of the other person making a donation to a political party or group by denying the person access to membership of certain groups; by not allowing the person to work or continue to work; or by subjecting the person to any form of intimidation or coercion or any other detriment.

19. The specified penalty for contravention of this subsection is a $9 000 fine or imprisonment for 2 years (or both) if the offender is a natural person, or a $36 000 fine if the offender is a body corporate.

20. The High Court has indicated that it will be reluctant to find that the offence provisions of the Act infringe on conduct that is more appropriately covered by the political process. In Re Cusack it was argued that the requirement under s. 170 of the Act that a candidate pay a nomination fee interfered with the free exercise of a right or duty contrary to s. 327(1). In finding that s. 170 was not inconsistent with s. 327, Justice Wilson stated:

The requirement that a candidate pay a nomination fee does not interfere with the free exercise of a political right or duty. Section 327 is not addressed to fiscal considerations of the kind that are dealt with in s. 170. It is concerned with intimidatory or other practices that tend to overbear the freedom or will of the person exercising the right or duty. Furthermore the larger questions concerning the legitimacy of the legislative process are not questions that can be addressed in this Court. They are questions for debate, if at all, in the political arena.

21. This statement suggests that the type of conduct s. 327 is likely to apply to include physical intimidation or social or economic discrimination that directly interferes with a person's ability to freely participate in the electoral process.

In Hudson v Entsch [2005] FCA 460 it was argued that Mr Entsch had incited another person to knock down an electoral sign and that this interfered with the free exercise of a political right or duty by Mr Hudson contrary to s. 327(1). In concluding that the factual circumstances of the case did not reveal a breach of s. 327, Justice Dowsett stated that political right or duty is restricted:

In my view, a political right, for the purposes of subs 327(1) is the right to vote (including the allocation of preferences), the right to stand for election and the right to support or oppose a candidate, group of candidates or party.

Further to this Justice Dowsett stated that to knock down a sign might be an exercise of another person's political right.

Mr Hudson exercised his right to oppose Mr Entsch's candidature by erecting signs. His right was not hindered or interfered with by their being knocked down. He remained free to erect more signs or to express his opposition in other ways. Further, having exercised one’s right to support or oppose a candidate, one must accept that any lawful response to it may also be valid support for, or opposition to, the candidate in question. To knock down an electoral sign may be as much an expression of such support or opposition as is its erection, provided that both actions are performed lawfully.

Issues going to the legality of support or opposition will be determined on their facts on a case-by-case basis.

22. If a candidate is elected and the Court of Disputed Returns finds that the candidate has interfered with, or attempted to interfere with, political liberty as prohibited by s. 327, the Court must declare the election of the candidate void under s. 362 of the Act.

What to do if you think any of these offences are occurring

23. If someone suspects another person or persons of committing an offence under these (or any other) provisions of the Act, there are a number of avenues available. These vary depending on the circumstances.

24. Concerns about electoral offences, or knowledge of any suspected breaches of the law, can be reported directly to the Australian Federal Police.

Before or during the polling:

a) Notify the AEC

25. Anyone who is aware of a breach (or possible breach) of ss. 325A, 326 or 327 is encouraged to notify the AEC. The AEC will then determine whether it is appropriate to apply to the Federal Court for an injunction to stop the behaviour (see below) or whether the matter should be dealt with after the cessation of polling. The complainant should provide as much information as possible to enable assessment of the alleged breach. Evidence from which the AEC can make a formal assessment of its compliance with the law should accompany complaints.

b) Injunction

26. Section 383 of the Act provides that the Federal Court may grant an injunction against a person who has engaged, is engaging or is proposing to engage in any activity that contravenes the Act (or other Commonwealth law as it relates to elections) to restrain them from engaging in the conduct. Section 383 specifies that either a candidate in the election or the AEC may apply to the Federal Court for an injunction. Electors who are not candidates are not able to independently apply to the Federal Court for an injunction and should instead notify either the AEC or a candidate in the election.

After the polling:

c) Notify the AEC

27. Anyone who is aware of a breach (or possible breach) of ss. 325A, 326 or 327 is encouraged to notify the AEC. The complainant should provide as much information as possible to enable assessment of the alleged breach. Evidence from which the AEC can make a formal assessment of its compliance with the law should accompany complaints.

d) Election petition

28. The High Court of Australia, sitting as the Court of Disputed Returns, is empowered under Part XXII of the Act to inquire into the validity of federal elections, including any allegations of illegal practice. Illegal practice is specified in the Act to mean, for the purposes of Part XXII, a contravention of the Act or its regulations.

29. To bring an allegation of illegal practice before the Court, it is necessary for an elector to file a petition with the High Court Registry within 40 days of the return of the writ for the election. An elector can only dispute the election in which he or she was enrolled to vote, that is, a petitioner cannot dispute the entire federal election but just the particular House of Representatives division or Senate state or territory election allegedly affected. The petition must set out the facts relied on to dispute the election, provide the particulars of any allegations made, and be signed by witnesses. The requirements in the Act for what information must be set out in a petition are stringent and potential petitioners are advised to seek legal advice before lodging a petition. There are statutory fees and charges involved in petition proceedings, however these charges, and any costs orders, may be waived in certain circumstances in the public interest.

30. The Court of Disputed Returns is empowered to, amongst other things, declare a person who was returned as elected not duly elected, declare any election absolutely void, and to dismiss or uphold the petition in whole or in part.

31. Under the Act the AEC is itself entitled to file a petition disputing an election. This may occur in circumstances where official error or illegal conduct sufficient to affect the result of an election has been discovered, or where a tied vote in a House of Representatives election cannot be resolved on the recount provided for in the Act.

32. If the Court of Disputed Returns finds that a successful candidate has committed, or attempted to commit, bribery or undue influence, the court must void the election of the candidate. The court will not void the election of a candidate if the illegal practice was committed by someone other than the candidate without the candidate's knowledge or authority, or if the illegal practice was not bribery, corruption or attempted bribery or corruption, unless the court is satisfied that the result of the election was affected and that it would be just for the candidate to be declared not duly elected or that the election should be declared void.

33. Where the Court of Disputed Returns finds that any person has committed an illegal practice, the court must report this finding to the relevant Minister. The person who committed the illegal practice may still be prosecuted whether or not the illegal practice affected the results of the election.

e) Parliamentary scrutiny – submissions to the Joint Standing Committee on Electoral Matters (JSCEM)

34. It has been customary after a federal election for the JSCEM to conduct an inquiry into the conduct of the election. The JSCEM includes representatives from all major political parties in the Parliament and is chaired by a member of the governing political party or coalition of parties.

35. Each JSCEM inquiry into a federal election invites public submissions, holds public hearings across the nation for a period of about a year, and, amongst other things, investigates any allegations of illegal practice. The AEC makes numerous submissions to each JSCEM inquiry on all aspects of the conduct of the election. After they are released for publication by the JSCEM, AEC submissions are made available to the public in hard copy through the JSCEM Secretariat, or on the AEC website at www.aec.gov.au.

36. Each inquiry results in a JSCEM Report, which analyses and comments on all public submissions, and contains recommendations for changes to electoral legislation and procedures.

37. The JSCEM Report is tabled in Parliament and copies are made publicly available on the Australian Parliament House website www.aph.gov.au. The Government of the day responds to the JSCEM recommendations by tabling a formal response in the Parliament and where necessary proposing legislation to amend the Act.

Summary

38. The offences under ss. 325A, 326 and 327 of the Commonwealth Electoral Act 1918 are in force at all times and not just during the election period. Where any of these provisions of the Act appear to have been contravened, the AEC may refer the matter to the Australian Federal Police for investigation, and a brief of evidence may be referred to the Commonwealth Director of Public Prosecutions (DPP) for advice. The DPP using the Prosecution Policy of the Commonwealth then decides whether a prosecution against the alleged offender should be instituted.

39. Readers should note that the AEC is able to assist political parties, intending candidates or other interested organisations or individuals by informing them of legislative requirements in relation to elections that are set out in the Act. The AEC is not able to provide legal advice. This includes advice as to whether particular circumstances breach the legislative requirements.

40. Anyone with an interest in the interpretation of the law in relation to ss. 325A, 326 or 327 in particular circumstances should consult the exact provisions of the Act and seek their own legal advice. Anyone who believes that there is a case for legislative amendment to the Act should lodge a submission with the JSCEM at Parliament House.

Suggestions for further reading

41. The Commonwealth Electoral Act 1918 is available on the Attorney General's Commonwealth Law website. AEC Parliamentary submissions relating to electoral law can be accessed through the AEC website.

42. AEC Parliamentary submissions and JSCEM reports can be accessed through the AEC website and the JSCEM website.

43. Relevant court decisions may be accessed through public libraries or the Australasian Legal Information Institute website, including the cases referred to above:

  • Woodward v Maltby (1959) VR 794
  • Scott v Martin (1988) 14 NSW LR 663
  • Re Cusack (1988) 60 ALJR 302
  • Hudson v Entsch (2005) FCA 460.

Endnotes

The Commonwealth Electoral Act 1918 can be accessed through any major public library, or the ComLaw website.

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

Relevant provisions of the Commonwealth Electoral Act 1918.

4 Interpretation

(1) In this Act unless the contrary intention appears:

Hospital includes a convalescent home or an institution similar to a hospital or to a convalescent home.

nursing home means an institution (other than a hospital) in which infirm, ill or disabled persons needing continuing nursing care are provided with accommodation and nursing care.

Part XXI Electoral Offences

325A Influencing votes of hospital patients etc.

(1) A person who is the proprietor of, or an employee of the proprietor of, a hospital or nursing home shall not do anything with the intention of influencing the vote of a patient in, or resident at, the hospital or nursing home.

Penalty: $1000 or imprisonment for 6 months, or both.

(2) The reference in subsection (1) to the proprietor of a hospital or nursing home includes a reference to a person who is a member or officer of a body corporate that is the proprietor of a hospital or nursing home.

326 Bribery

(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, a 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: $5000 or imprisonment for 2 years, or both.

(2) 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, a group of candidates or a political 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 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: $5000 or imprisonment for 2 years, or both.

(3) This section does not apply in relation to a declaration of public policy or a promise of public action.

327 Interference with political liberty etc.

(1) A person shall 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 this Act.

Penalty: $1000 or imprisonment for 6 months, or both.

(2) 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 or by-election or to a group:

  1. by denying him or her access to membership of any trade union, club or other body;
  2. by not allowing him or her to work or to continue to work;
  3. by subjecting him or her to any form of intimidation or coercion;
  4. by subjecting him or her to any other detriment.

Penalty:

  1. if the offender is a natural person – $5000 or imprisonment for 2 years, or both; or
  2. if the offender is a body corporate – $20 000.

(3) A law of a State or Territory has no effect to the extent to which the law discriminates against a member of a local government body on the ground that:

  1. the member has been, is, or is to be, nominated; or
  2. the member has been, is, or is to be, declared;

    as a candidate in an election for the House of Representatives or the Senate.

(4) In subsection (3):

member of a local government body means a member of a local governing body established by or under a law of a State or Territory.

Part XXII Court of Disputed Returns

352 Interpretation

(1) In this Part:

bribery or corruption means a contravention of section 326.

illegal practice means a contravention of this Act or the regulations.

undue influence means a contravention of section 327 of this Act or section 28 of the Crimes Act 1914.

(2) For the purposes of this Part, a person who aids, abets, counsels or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the contravention of a provision of this Act, the Crimes Act 1914 or the regulations under this Act shall be deemed to have contravened that provision.

362 Voiding election for illegal practices etc.

(1) If the Court of Disputed Returns finds that a successful candidate has committed or has attempted to commit bribery or undue influence, the election of the candidate shall be declared void.

(2) No finding by the Court of Disputed Returns shall bar or prejudice any prosecution for any illegal practice.

(3) The Court of Disputed Returns shall not declare that any person returned as elected was not duly elected, or declare any election void:

  1. on the ground of any illegal practice committed by any person other than the candidate and without the knowledge or authority of the candidate; or
  2. on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption; unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

(4) The Court of Disputed Returns must not declare that any person returned as elected was not duly elected, or declare any election void, on the ground that someone has contravened the Broadcasting Services Act 1992 or the Radiocommunications Act 1992.

363 Court to report cases of illegal practices

When the Court of Disputed Returns finds that any person has committed an illegal practice, the Chief Executive and Principal Registrar of the High Court shall forthwith report the finding to the Minister.

Part XXIII Miscellaneous

383 Injunctions

(1) Where a person has engaged, is engaging or is proposing to engage in any conduct that constituted, constitutes or would constitute a contravention of, or an offence against, this Act or any other law of the Commonwealth in its application to elections, the Federal Court of Australia (the Federal Court) may, on the application of:

  1. in a case where the conduct relates to an election—a candidate in the election; or
  2. in any case—the Electoral Commission;

    grant an injunction restraining the first-mentioned person from engaging in the conduct and, if in the opinion of the Federal Court it is desirable to do so, requiring that person to do any act or thing.

(2) Where:

  1. a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and
  2. the refusal or failure was, is, or would be, a failure to comply with, or an offence against, this Act or any other law of the Commonwealth in its application to elections;

the Federal Court may, on the application of:

  1. in a case where the refusal or failure relates to an election—a candidate in the election; or
  2. in any case—the Electoral Commission;

grant an injunction requiring the first-mentioned person to do that act or thing.

(3) Where an application is made to the Federal Court for an injunction under subsection (1), the Federal Court may, if in the opinion of the Federal Court it is desirable to do so, before considering the application, grant an interim injunction restraining a person from engaging in conduct of the kind referred to in that subsection pending the determination of the application.

(4) The Federal Court may discharge or vary an injunction granted under subsection (1), (2) or (3).

(5) Where an application is made to the Federal Court for the grant of an injunction restraining a person from engaging in conduct of a particular kind, the power of the Federal Court to grant the injunction may be exercised:

  1. if the Federal Court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the Federal Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or
  2. if it appears to the Federal Court that, in the event that an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

(6) Where an application is made to the Federal Court for the grant of an injunction requiring a person to do a particular act or thing, the power of the Federal Court to grant the injunction may be exercised:

  1. if the Federal Court is satisfied that the person has refused or failed to do that act or thing— whether or not it appears to the Federal Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or
  2. if it appears to the Federal Court that, in the event that an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.

(7) Where the Electoral Commission makes an application to the Federal Court for the grant of an injunction under this section, the Federal Court shall not require the Electoral Commission or any other person, as a condition of the granting of an interim injunction, to give any undertakings as to damages.

(10) The powers conferred on the Federal Court under this section are in addition to, and not in derogation of, any other powers of the Federal Court, whether conferred by this Act or otherwise.

384 Prosecution of offences

(1) Subject to subsection (2), an offence against subsection 315(3) or section 326 is an indictable offence.

(2) A court of summary jurisdiction may hear and determine proceedings in respect of an offence referred to in subsection (1) if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.

(3) Where, in accordance with subsection (2), a court of summary jurisdiction convicts a person of an offence against subsection 315(3) or section 326, the penalty that the court may impose is:

  1. in the case of an offence against subsection 315(3) – a fine not exceeding $5000; or
  2. in the case of an offence against section 326 – a fine not exceeding $2000 or imprisonment for a period not exceeding 12 months, or both.

386 Disqualification for bribery and undue influence

Any person who:

  1. is convicted of an offence against:
    1. section 326 or 327 of this Act or section 28 of the Crimes Act 1914; or
    2. an offence against section 11.1 of the Criminal Code that relates to an offence referred to in subparagraph (i); or
  2. is found by the Court of Disputed Returns to have committed or attempted to commit bribery or undue influence, within the meaning of Part XXII, when a candidate;

    shall, during a period of 2 years from the date of the conviction or finding, be incapable of being chosen or of sitting as a Member of either House of the Parliament.

Publications

The AEC has available a number of publications for people interested in the electoral process including:

Media Liaison

Members of the media are asked to contact the Media Liaison. For enquiries call 13 23 26.