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Australian Electoral Commission
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. Electoral Backgrounders do not promote a particular position or provide legal advice, and should not be relied upon as such. Anyone requiring legal advice should consult their own legal advisers.
2. The AEC administers the conduct of federal elections under the provisions of the Commonwealth Electoral Act 1918 (Electoral Act) and the conduct of federal referendums under the Referendum (Machinery Provisions) Act 1984(Referendum Act).
Please note, the words 'voter' and 'elector' are used interchangeably throughout this publication.
3. This Backgrounder provides introductory information in relation to ss 325A, 326 and 327 of the Electoral Act, and the equivalent provisions in the Referendum Act (ss 118A, 119 and 120). 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 (or referendums). Relevant provisions of the Electoral Act and Referendum Act are detailed below.
Note: The offences under ss 325A, 326 and 327 of the Electoral Act (and the equivalents in the Referendum Act) are in force at all times and not just during the election period.
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:
6. Section 326 of the Electoral 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. If a person is found guilty of this offence, a court may impose a penalty of imprisonment of up to 2 years or 50 penalty units, or both.
8. Section 119 of the Referendum Act creates an equivalent offence in relation to referendums.
9. There is some uncertainty about the scope of s 326. The provision could arguably cover a wide range of factual circumstances. The only judicial guidance is provided by cases decided in state Supreme Courts on similar offences in state legislation.
10. There have been no cases of electoral bribery brought before the courts in the history of federal parliamentary elections, and therefore the law cannot be absolutely certain.
11. The majority of complaints received by the AEC concerning s 326 made 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. Section 326 may not be contravened by such hospitality as it is reasonable to argue that there is no intention to directly influence voters or to buy their political allegiance, rather simply 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 Electoral Act.
13. Subsection 325A(1) of the Electoral 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 Electoral 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.
14. Section 118A of the Referendum Act creates an equivalent offence in relation to referendums.
15. Section 4 of the Electoral 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.
16. While s 325A has not yet been the subject of litigation the intention of s 325A is to ensure that hospital and nursing home patients and residents exercise their voting right free from undue influence and pressure to vote in a particular way contrary to their own belief.
17. 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.
18. If a person is found guilty of this offence, a court may impose a penalty of imprisonment for up to 6 months or 10 penalty units, or both.
19. Subsection 327(1) of the Electoral 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 a federal election. Examples of interference with political liberty may include violence, obscene or discriminatory abuse, property damage and harassment or stalking. If a person is found guilty of this offence, a court may impose a penalty of imprisonment for up to 3 years or 100 penalty units, or both.
20. Section 120 of the Referendum Act creates an equivalent offence in relation to referendums.
21. Unique to the Electoral Act, subsection 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, candidate or group:
22. If a person is found guilty of this offence, a court may impose a penalty of imprisonment for up to 2 years or 50 penalty units, or both. If a body corporate is found guilty of this offence, a court may impose a penalty of 200 penalty units.
23. The High Court has indicated that it will be reluctant to find that the offence provisions of the Electoral 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 Electoral Act that a candidate pay a nomination fee interfered with the free exercise of a right or duty contrary to subsection 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."
24. 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.
25. 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 subsection 327(1). In concluding that the factual circumstances of the case did not reveal a breach of s 327, Justice Dowsett stated:
"In my view, a political right, for the purposes of sub-s 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:
"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.
26. Note: 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 and the Court is satisfied that the results of the election was likely affected so far as the person should not have been declared elected the Court must declare the election of the candidate void under s 362 of the Electoral Act.
27. If someone suspects another person or persons of committing an offence under these (or any other) provisions of the Electoral Act or Referendum Act, there are a number of avenues available. These vary depending on the circumstances.
28. Concerns about electoral offences, or knowledge of any suspected breaches of the law, can be reported directly to the Australian Federal Police (AFP).
a) Notify the AEC
29. Anyone who is aware of a breach (or possible breach) of ss 325A, 326 or 327 (or the Referendum Act equivalents) 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. Where any of these provisions appear to have been contravened, the AEC may refer the matter to the AFP for investigation, and a brief of evidence may be referred to the Commonwealth Director of Public Prosecutions (CDPP) for advice. In line with the Prosecution Policy of the Commonwealth, the CDPP then decides whether the alleged offender should be prosecuted.
b) Injunction
30. Section 383 of the Electoral 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.
31. Section 139 of the Referendum Act creates an equivalent power in relation to referendums.
32. Unique to the Electoral Act, s 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.
a) Notify the AEC
33. Anyone who is aware of a breach (or possible breach) of ss 325A, 326 or 327 (or the Referendum Act equivalents) 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. Where any of these provisions appear to have been contravened, the AEC may refer the matter to the AFP for investigation, and a brief of evidence may be referred to the CDPP for advice. In line with the Prosecution Policy of the Commonwealth, the CDPP then decides whether the alleged offender should be prosecuted.
b) 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 Electoral Act or Referendum Act.
c) Election petition (election only)
38. The High Court of Australia, sitting as the Court of Disputed Returns, is empowered under Part XXII of the Electoral Act to inquire into the validity of federal elections, including any allegations of illegal practice. Illegal practice is specified in the Electoral Act to mean, for the purposes of Part XXII, a contravention of the Electoral Act or its regulations.
39. 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 they were 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 Electoral 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.
40. 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.
41. Under the Electoral Act, the AEC is 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.
42. 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.
43. 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.
44. The Commonwealth Electoral Act 1918 is available on the Australian Government’s Federal Register of Legislation. AEC Parliamentary submissions relating to electoral law can be accessed through the AEC website.
45. AEC Parliamentary submissions and JSCEM reports can be accessed through the AEC website and the JSCEM website.
46. Relevant court decisions may be accessed through public libraries or the Australasian Legal Information Institute website, including the cases referred to above:
The Commonwealth Electoral Act 1918 and Referendum (Machinery Provisions) Act 1984 can be accessed through any major public library, or the Australian Government’s Federal Register of Legislation.
Further information in relation to compliance with electoral law is set out in the AEC's Electoral Backgrounder publications.
The AEC has available a number of publications for people interested in the electoral process including:
| Version | Purpose |
|---|---|
| 3 May 2023 | To address the relevant provisions of the Referendum (Machinery Provisions) Act 1984. |
29 September 2021 |
To address amendments to Section 327 of the Electoral Act by the Electoral Legislation Amendment (Electoral Offences and Preventing Multiple Voting) Act 2021 to include an example of conduct amounting to an offence of interfering with political liberty. This amendment also increased the penalty for this offence. |
The AEC acknowledges the Traditional Owners of country throughout Australia and recognises their continuing connection to land, waters, culture and community. We pay our respects to Elders past, present and emerging.