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ELECTORAL CORRUPTION AND MALPRACTICE

By P. D. FINN*

Australian electoral legislation provides both a regulatory andpunitive scheme designed to overcome electoral corruption andmalpractice. Much of this legislation has been based on Britishmodels. The article commences by detailing the existing Britishlegislation and its merits. Extended consideration is then given tothe sections of Australian electoral legislation dealing with theconduct of candidates for election and their supporters. Theformer British legislation which has been imitated in variousA ustralian jurisdictions is identified and the effectiveness of thepresent Australian electoral legislation is compared with thatpresently in force in the United Kingdom. As well, the principalelectoral offences and controls on electoral expenditure in each ofthe States and the Commonwealth are considered at length. Theanalysis in this regard is complemented by a schedule to the articlecomparing the existence of, and penalties for, 48 electoral offencesunder various electoral statutes in Australia and the United Kingdom. Dr Finn concludes the article by arguing for reform in anumber of specified areas of Australian electoral legislation.

The ideal that parliamentary elections be pure and free, that theybe devoid of corruption and of intimidation, is of long history in theBritish constitutional system.1 This article examines how this ideal isbeing served in Australia today and, in particular, how Australianelectoral legislation has attempted to control the bringing of improperinfluences to bear on voters and on candidates. If one looks to thenumber of election petitions and criminal prosecutions which havearisen under the Commonwealth and State Acts, a marked measureof success may be claimed. However, if one considers the present stateof these Acts no reason for complacency will be found. The scheduleto this article contains a comparative table of those electoral offencesin Australian jurisdictions which can be regarded as supporting the"pure and free" ideal. The table speaks for itself. Furthermore, if oneconsiders the actual conduct of campaigns in this country, one maywonder to what extent they comply strictly with the requirements ofelectoral law. Controls on electoral expenditure, for example, are oftenopenly flouted.

So as to indicate the significance and efficacy of the steps taken tocorrect and to eliminate malpractice a comparative model has been

* B.A., LL.B. (Qld.), LL.M. (Lond.), Ph.D. (Cantab.); Senior Lecturer in Law,Australian National University.

1 Statute of Westminster the First (1275), 3 Edw. 1, c. 5; Bill of Rights (1688),1 Will. & Mar., sess. 2, c. 2; Borough 0/ Blechingley (1623) Glanv. El. Cas. 29.

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1977] Electoral Corruption and Malpractice 195

selected-that embodied in the British Representation of the PeopleAct 1949. While acknowledging the significant differences in theconduct of elections between the United Kingdom and Australia, thismodel has been chosen for a variety of reasons. Firstly, Britain hasbeen the immediate source of much of Australia's electoral legislation,and, as. will be seen, British social and legal history explains thepurport and the objectives of significant parts of the law so borrowed.Secondly the British Act is itself instructive in that it has underlying ittwo distinct philosophies aimed at securing the pure and free idealthe one punitive, to discourage malpractice, the other regulatory, toeliminate the sources and causes of malpractice. Thirdly, if ourlegislators are at all minded to remedy the glaring inadequacies in theState and Commonwealth Acts, the British legislation provides today,as it has in the past, guides to reform.

This article will, then, consider-

1. the British model, its policies and objectives;

2. the Australian comparisons; and

3. suggestions for reform in Australian legislation.

I. THE BRITISH MODEL

Long before statute attempted extensive regulation of electoralpractices, English parliamentary law and the common law had bothattacked the more gross forms of corruption. Parliamentary law'sregulation was based upon control of the membership of the Houseof Commons. It required that a successful candidate be unseated(a) if he or his agents had been guilty of bribery or corrupt "treating"of electors2-"treating" being the provision of food, drink· orentertainment so as to influence an elector-or (b) if extensive andindiscriminate corruption-whether in the form of bribery, treating,or intimidation, and whether emanating from the candidate or not3

prevailed throughout the entire constituency.4 Furthermore Parliamentevolved quite unique and far-reaching rules of electoral agency which,as will be seen, have been kept to this day. The common law's correction was directed at the perpetrators of corruption, whether candidatesor not. Bribery at elections was always a crime.5 Treating seems tohave been a common law misdemeanour.6

With the growth of statutory regulation of elections the significanceof parliamentary law and the common law was much diminished. Butthey left the legacy of a two-pronged punitive scheme for eliminating

2 E.g. Borough of Staleybridge (1869) 1 O'M. & H. 66.3 E.g. Borough of Blackburn (1869) 1 O'M. & H. 198.4 E.g. Borough of Drogheda (1869) 1 O'M. & H. 252.5 E.g. R. v. Pitt, R. v. Mead (1769) 3 Burr. 1335; 97 E.R. 861.6 Hughes v. Marshall (1831) 2 C. & J. 118; 149 E.R. 49.

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electoral malpractice: a scheme which (a) unseated candidates foundresponsible directly or indirectly for corrupt practices and (b) imposedcriminal liability on the perpetrators of corruption. The current Britishlegislation, the Representation of the People Act 1949, embodies thispunitive scheme. But it has complemented it with a regulatory 'oneone which controls the manner in which a candidate conducts hiscampaign. Central to this regulatory scheme is the all-importantelection agent around whom so much connected with a campaignpivots. The principal restraint in the conduct of the campaign is theeconomic "strait waistcoat" imposed by limitation of electoral expenditure. Today, with the demise of the naked forms of corruption andwith the growth of large and anonymous electorates, the regulatoryscheme overshadows the punitive one in the control of malpractice.

(1) The punitive scheme

The Representation of the People Act 1949 (U.K.) has adoptedand extensively defined the parliamentary law corrupt practices ofbribery7 and treating.8 The exercise of undue influence over an individual voter has been made a corrupt practice9-at common law undueinfluence had only the effect of rendering the vote void on a scrutiny.10Along with these, three additional corrupt practices and nine illegalpractices have been created. These, where relevant to this article, arenoted in the text. All the corrupt and illegal practices carry penalconsequences for those who are privy to their commission.11 Equally,if resorted to by the successful candidate or by his agents, his electionwill be declared void.12

Both in the United Kingdom and in Australia the importanttraditional forms of electoral corruption are undoubtedly bribery,treating and undue influence. While there are differences between theBritish and the various Australian definitions of these offences, theBritish offences warrant some separate mention as they provide thebackground against which their Australian counterparts should beconsidered. Furthermore the British case law is instructive in itsexamples of corruption, and many of the activities condemned by theelection judges in the United Kingdom are activities which, if practisedin Australian campaigns, will result in the commission of electoraloffences.

7 Representation of the People Act 1949, s.99 (U.K.) (hereinafter abbreviatedin the footnotes as R.P.A.) .

8 R.P.A., s. 100.9 R.P.A., s. 101.

10 E.g. Borough of Oldham (1869) 1 O'M. & H. 151, 161-162.11 R.P.A., SSe 146-147.12 R.P.A., s. 139.


(a) Bribery

The giving of valuable consideration, in whatever form, to anelector or to a third person to influence the manner in which theelector exercises his franchise is the offence of bribery both in theofferor and in the offeree.13 It is immaterial whether or not the electori~ in fact influenced by the bribe.14 Likewise a bribe offered but nottaken is an offence in the offeror.15 For a successful candidate to beunseated, a single act of bribery or of attempted bribery by himself, orby his agents, will suffice. But the bribe must be offered at such a timeas makes it operative on the election.116

The heyday of bribery was undoubtedly in the nineteenth centuryin small and volatile electorates. In forms both naked and dissemblingit stalked many elections.17 In the Borough of BeverleY,18 for example,nearly 1,000 of 2,600 possible voters were bribed through the misapplication of the funds of the charities of the town. And colourablecharity itself was a common form of bribery: as Bowen J. observed onone occasion, bribery could be found "following in the steps of charity,wearing the dress of charity and mimicking her gait".19

With the advent of full adult suffrage, bribery of electors ceased tobe a potent force capable of influencing electoral results. Large andanonymous electorates destroyed its breeding grounds.20 Today thiscrudest form of corruption is of little significance. Indeed it is fair tosay both of the United Kingdom and of Australia that the movementof money in this century is oppositely directed going from interestedelectors to candidates and parties rather than vice versa.

(b) Treating

To "treat" is to offer, give, or pay for the provision of food, drink orentertainment with the corrupt intention of influencing an elector in

13 R.P.A., s.99.14 Sulston v. Norton (1761) 3 Burr. 1235, 1237; 97 E.R. 807, 808.l5 Borough of Coventry (1868) 1 O'M. & H. 97, 107. '16 Borough of Stroud (1874) 2 O'M. & H. 181, 183.17 The instances of elections being avoided in the nineteenth century for bribery

are numerous; for payments of money, see Borough of Bristol (1870) L.R. 5 C.P.503, for offers of employment, see Harding v. Stokes (1837) 2 M. & W. 233;150 E.R. 742; for payment of voters' travelling expenses to the poll, see Cooperv. Slade (1857) 6 H.L.C. 746; 10 E.R. 1488; for permitting voters to trap andshoot game, see Borough of Launceston (1874) 2 O'M. & H. 129; for purchasingshares with calls due on them see Borough of Bewdley (1881) 44 L.T. 283; forcolourable charity, see Borough of Evesham (1880) 3 O'M. & H. 94; forneedless hiring of public houses, see Borough of New Windsor (1866) 15 L.T. 105.

18 (1869) 1 O'M. & H. 143.19 Borough of Wigan (1881) 4 O'M. & H. 1, 14; see also Borough of Kingston

Upon-Hull (1911) 6 O'M. & H. 372; Borough of Nottingham (1911) 6 O'M. &H.292.

20 For an interesting account of corruption in elections in Victorian Englandsee Burn, "Electoral Corruption in the Nineteenth Century" (1950-1951 ) 4Parliamentary Affairs 437.


his vote.21 Thou'gh regarded as more venial than bribery it is nonetheless an offence both in the donor and in the corrupt recipient.Treating is today an offence still to be reckoned with both in theUnited Kingdom and in Australia. The genial hospitality of a partysupporter may easily transgress the law. For this reason election courtshave reprobated the practice of candidates and their supportersindulging even committed electors. As Blackburn J. observed in theCounty of North Norfolk "whenever a candidate or agent gives anymeat or drink he does what is a foolish and imprudent thing, and ifthe judge who tries the case finds the intention was to influence andaffect voters, it vacates the election".22

The dividing line between good fellowship and hospitality which isinnocent, and treating which is offensive, is obviously difficult to draw.The intention accompanying the indulgence is paramount.23 Butprovided the indulgence is effected "with the object and intention ofdoing that which the legislature plainly means to forbid . . ."24 that issufficient. However, while a treat is not to be measured by the actualthing given,25 as the giving of food and drink is more equivocal thanthe giving of money, stronger evidence is required to establish treatingthan is necessary to show bribery.26 As with bribery, systematic treatingby candidates and their agents disappeared with the growth in size ofelectorates~ Nonetheless, as will be seen in the Australian context, theoffence of treating, along with bribery, sets the limit to the type ofgift or trinket which a candidate can distribute as a form of personaladvertising.

(c) Undue influence (Intimidation)

Though the policy of the law is that an elector should freely formhis own judgment, the law cannot strike at the existence of influenceas such. Influence may properly and legitimately be acquired over anelector, and equally properly and legitimately be used. The law in theUnited Kingdom-as in Australia-is limited to dealing with the abuseor undue exercise of influence. This corrupt practice is committed inthe United Kingdom whenever, in order to control or influence anelector, a person (a) uses or threatens to use any force, violence orrestraint, or (b) inflicts or threatens temporal or spiritual injury,

21 R.P.A., s. 100.22 (1869) 1 O'M. & H. 236, 244.23Borough of Wallingford (1869) 1 O'M. & H. 47, 59; Bodmin Division of

County of Cornwall (1906) 5 O'M. & H. 225, 233-235.24 Per Blackburn I., Borough of Bewdley (1869) 11 O'M. & H. 16,19.25 Borough of Wallingford (1869) 1 O'M. & H. 57, 59; Borough of Wigan

(1881) 4 O'M. & H. 1, 13-14.26 Borough of Wallingford (1869) 1 O'M. & H. 57, 59; Borough of Harwich

(1880) 3 O'M. & H. 61, 70-71.

1977] Electoral Corruption and lWalpractice 199

damage, harm or loss, or (c) resorts to abduction, duress or anyfraudulent device.27

The more gross forms of intimidation exercised on behalf of candidates disappeared from national elections in Britain with the comingof adult suffrage. No longer are electors likely to witness the type ofspectacle exhibited in the Borough of Cheltenham28 where a prizefighter was engaged on behalf of a candidate to intimidate voters.Equally, growing religious tolerance has largely muted the clergymanwho holds out eternal perdition to an elector if he votes "the wrongway".29 But if no longer practised by candidates, undue influence may,nonetheless, easily be practised as between voters at election time,and particularly in bitterly fought campaigns. Threats or actions arisingout of political differences can well constitute an offence as where, forexample, a voter is coerced by a threat to withdraw custom fron;t hisbusiness on account of his political persuasion,30 or where an employee'scontinued employment is put in jeopardy,31 or where a tenant isthreatened with eviction. This dimension of the offence maintains acontinuing importance in the United Kingdom and in Australia.

(2) Malpractice and the successful candidate in the U.K.

The consequences to a successful candidate of the commission of acorrupt or illegal practice by himself, or by his agents, are severe.Here British law differs dramatically from the Australian, and does solargely because of the coupling of wide powers of unseating candidatesto a savage parliamentary law rule of agency not so far adopted inthis country. Apart altogether from the penal consequences to theactual perpetrators of a malpractice, a British election will be declaredvoid and the successful candidate will be incapable of being electedto the House of Commons for the constituency for which the electionwas held-

(a) if reported personally guilty of a corrupt practice by the electioncourt, for ten years;

(b) if reported guilty by his agents of a corrupt practice, or personallyguilty of an illegal practice, for seven years; or

(c) if reported guilty by his agents of an illegal practice, during theParliament for which the election was held.32

The election courts have a very limited power to exonerate acandidate reported guilty by his agents.3S But the strong thrust of the

27 R.P.A., 8. 101.-28 (1869) 1 O'M. & H. 62.29 Northern Division of County of Meath (1892) 4 O'M. & H. 185.30 E.g. County of Norfolk (1869) 1 O'M. & H. 236.31 E.g. Borough of Westbury (1869) 1 O'M. & H. 47.32 R.P.A., 8. 139.33R.P.A., 8.138(3).


British law is to make the candidate responsible for acts committed onhis behalf during his campaign, to compel him and his election agentto use reasonable care in the selection of agents, and to exercise regularsupervision over their activities.

(3) The rules of electoral agency

When the courts in Britain were given jurisdiction to hear electionpetitions they were expressly enjoined to apply "the principles, practiceand rules on which the committees of the House of Commons haveheretofore acted"34 and in particular to apply the parliamentary "ruleswith regard to agency".35 In no Australian jurisdiction is an electiontribunal or court directed to apply such rules and, as will be seen, theyhave refrained in the main from so doing. Under the parliamentaryrules it has long been settled36 that a candidate is liable, insofar as theelection result is concerned, for all the corrupt and illegal practices ofpersons who are in fact his agents. It is irrelevant to these rules thatthe agent has acted contrary to his express instructions, or that thecandidate has never adopted, ratified or acquiesced in the agent'sacts.:n In this the parliamentary law differs markedly from the ordinarycommon law rule adopted in Australia. The parliamentary rule hasbeen described as "harsh", "cruel" and "severe" as it operates on athoroughly blameless candidate. But the election court has heldconsistently that "purity of election is more important than the successof any particular person in his candidature".38 The only exception tothe inexorable operation of this rule is where an agent is deliberatelytreacherous, resorting to corruption intending to prejudice his owncandidate. In such a case the candidate is not responsible for hisagent's actions.s9

Perhaps surprisingly there is no generally accepted definition of anagent for the purposes of the parliamentary rule. It is certain thoughthat agency for its purposes is far wider in scope than under thecommon law rules. In one of the more enduring observations onelection agency, Blackburn J. considered that:

Every instance in which it is shown that either with the knowledgeof the member or candidate himself, or to the knowledge of hisagents who had employment from him, a person acts at all infurthering the election for him, in trying to get votes for him, is

34 Parliamentary Elections Act 1868, s. 26 (U.K.).35 Ct. R.P.A., s. 137(2).3

1

6 See the judgment of Willes J. in Borough ot Blackburn (1869) 1 O'M. &H. 198, 201-202 for the antiquity of the rule.

37 E.g. Borough of Lichfield (1869) 1 O'M. & H. 22; Borough of Taunton(1869) 1 O'M. & H. 181, 184-185.

38 Borough of Norwick (1886) 54 L.T. 625, 626.39 E.g. Borough of Stafford (1869) 1 O'M. & H. 228.


evidence to show that the person so acting was authorised to actas his agent.40

Thus it is well accepted that a candidate may be held responsible forthe acts of persons whom he does not know, and with whom he hasnever had personal contact.

The parliamentary rule, in its scope, and in its draconian consequences, has a large practical effect in the conduct of a campaign. Itimposes a heavy onus on a candidate and his election agent to ensurethat their supporters in no way transgress the law. Some of the usualsteps taken in this regard are as follows.

(1) Because of the wide definition of agency and because the candidate's statutory election agent is often a full-time agent and officer ofa local party association, such associations often suspend their activitiesor in fact dissolve at elections so as to insulate the candidate so far asis possible from the risk of being held responsible for the acts of overzealous association members.

(2) The need to refrain from any form of improper conduct isbrought home to a candidate's workers by posters hung in hiscommittee rooms. These posters, used by the major political parties,spell out precisely and in detail offences under the British Representation of the People Act 1949 and the consequences flowing fromthem. The candidate's election agent, furthermore, will often convenemeetings of canvassers etc. at the beginning of a campaign expresslyfor the purpose of explaining to them these provisions of the Act.

The Representation of the People Act itself provides a positiveincentive to the candidate and his election agent to use care in theselection of workers, and to exercise regular supervision over theiractivities. Notwithstanding the very stringent rules of agency, where acandidate has been reported guilty by his agents of treating, undueinfluence or of any illegal practice, and he can prove, and the electoralcourt so reports-

(a) that he and his election agent were entirely blameless in theelection, and that the offences were committed contrary to theirorders; and

(b) that he and his election agent took all reasonable means forpreventing the commission of corrupt and illegal practices; and

(c) that the offences committed were of a trivial, unimportant andlimited character; and

(d) that in all other respects the election was free from any corrupt orillegal practice on the part of himself and of his agents-

then the election will not be declared void.41

40 Borough 0/ Bewdley (1869) 1 O'M. & H. 16, 17 (italics added).41 R.P.A., s. 138(3).


The parliamentary rules are thus, in the scheme of things, the rod;this power to exonerate, the carrot.

(4) The regulatory scheme

The advent of adult suffrage, and the demise of small electorates,wrought large changes in the orientation of British electoral law.Resort to the traditional forms of corruption became an unrewardingoccupation for candidates and supporters in large and anonymouselectorates. But in such electorates it was recognised that malpracticecould assume new and more subtle guises. Consequently the wholeemphasis in British legislation this century has been away from simpledeterrence of the traditional forms of malpractice, and towards positiveregulation of campaigns. The electoral expenditure provisions areachieving today that dominance which the corruption provisions heldin the nineteenth century, and this is most obviously reflected in thepetitions presented and prosecutions brought under the Representationof the People Act in recent years.

Part II of the Representation of the People Act dealing with "TheElection Campaign" has as one of its principal objectives the requisitionthat "the affairs on the election should be carried on in the light ofday".42 This is achieved (1) by tying the machinery of a candidate'scampaign to a statutorily recognised election agent; (2) by controlboth of a candidate's election expenditure and of expenditure by agentsand third persons in support of a candidate; and (3) by publication inthe constituency of the expenses so incurred.43

(a) The election agent

Dominating the regulatory scheme is the candidate's election agent.His office was first created in electoral legislation in the Corrupt andIllegal Practices Prevention Act 1883 (U.K.)-the source of much ofAustralia's electoral law. Under the current British Act, he is madethe person effectively responsible for the conduct of the candidate'scampaign. He commissions, and pays for, electoral expenses. He ischarged with the control of the candidate's supporters. He is a necessary consenting party to expenditure by interested parties in supportof his candidate. And he is expected to possess and show skill andinitiative in his candidate's interests for, as one judge put it, "peoplewho employ crossing sweepings to mend watches cannot complain if

42 Borough of Barrow-In-Furness (1886) 4 O'M. & H. 76, 83.43 It should be noted that the Act does not limit the expenditure of political

parties as such. This is emerging as a weakness in the legislation particularly, asin recent years, where Parliaments have been short-lived and where politicalparties have in consequence been subject to considerable economic stress inmeeting the costs of only too regular campaigns.


the result is unsuccessful"." The advent of the election agent hasresulted in the demise of the old style election committee. This, coupledwith the statutory concentration of powers in the election agent, hashad the not unimportant effect of eliminating the dangers to a candidate of the over-enthusiastic support of committee members and theirfollowers.

(b) Control of electoral expenditure

(i) Of candidates

If liberality and occasional prodigality highlighted many nineteenthcentury campaigns in England, today all has been reduced to astatutorily imposed frugality. With the maximum fixed that can beexpended by or on behalf of the candidate in the conduct or management of an election,45 he has, as has been said, been placed in a "straitwaistcoat".4'6 The expendable amount is fixed by reference to a baserate of seven hundred and fifty pounds plus increments linked to thenumber of registered electors in a constituency.

Control of election expenditure has been a feature of English lawsince the Corrupt Practices Prevention Act 1854 (U.K.). That Act,while setting no ceiling on a candidate's expenses instituted a systemof audit of expenses. The first ceiling came with the Corrupt andIllegal Practices Prevention Act 1883 (U.K.), and that Act limitedlawful electoral expenditure to certain specified transactions. It did nothowever control expenditure by persons unrelated to a candidate, butin support of him-this was only introduced by the Representation ofthe People Act 1918 (U.K.). It has been suggested that the 1883 Act,in specifying the only payments which could lawfully be nlade, wasprincipally concerned with the prevention of bribery of electors byindirect means.47 And it is thus the more noteworthy that the Australian jurisdictions which adopted schemes for controlling expenses,modelled their legislation on the 1883 Act. The Representation of thePeople Act 1949 (U.K.), while retaining an expenditure ceiling,abolished the classification of permissible heads of expenditure, leavingit almost entirely to the candidate and his election agent to determinehow they should allocate their resources. Several types of expenditureare, however, still prohibited, these being in the main payments out ofwhich corrupt practices, and in particular bribery, have developed inthe past.48

44Per Sankey J., Borough of Oxford (1924) 7 O'M. & H. 166. In practicethe election agents of the major political parties are full-time paid officers of thelocal party organisations; and see Schenkman, "The British Election Agent" (1952)5 Parliamentary Affairs 449.

45 R.P.A., s. 64, as amended by R.P.A. 1969, s. 8.46 Eastern Division of County of Cork (1911) 6 O'M. & H. 318, 346.47 See Halsbury's Law of England (3rd ed.) Vol. 14, para. 310.48 See R.P.A., SSe 88, 89, 90, 92, 93, 94.


The current statutory limit applies to all expenses incurred whetherbefore, during or after an election, on account of or in respect of theconduct or management of that election. For a contract incurringexpenses to be enforceable against a candidate it must be made by thecandidate himself or .by his election agent.49 All payments on accountof election expenses, with certain minor exceptions,50 must be madeby or through the election agent51-he is the "sole paymaster".52 Allclaims on account of and payments of election expenses must be madewithin prescribed times. Claims out of time are statute barred.53 Apayment made out of time constitutes an illegal practice.54

Within thirty-five days of the declaration of a poll, the election agentis required to send to the returning officer a return in the statutoryform;5.5 the return itemising the election expenses paid together withall bills and receipts.56 Failure to make a return is an illegal practice.57

When the return is made, both the election agent and the candidateare required to submit statutory declarations as to election expenses.If either knowingly makes a false declaration he will be guilty of acorrupt practice,58 and will have committed a criminal offence.59 Ifeither fails to make the declaration, he will be guilty of an illegalpractice.60 The policy of openness in this scheme of regulation ishighlighted by those provisions in the Act which require the returningofficer to publish in local newspapers notices of the time and place atwhich the returns and declarations can be inspected and copied. Andthey must be kept so available for a period of two years.61

(ii) 0/ agents and supporters

By the turn of the century it was accepted that there was littlepurpose served in controlling a candidate's expenses if his supporterswere allowed to spend freely in advancing his interests. Furthermoreif the outlays of supporters remained unchecked the candidate couldeasily find himself obliged to, if not under the influence of, those whoseeconomic commitment contributed to his success. Expenditure bysupporters was first subject to statutory regulation by the Representation of the People Act 1918 (U.K.). Today, under s.63 of the

49 R.P.A., s. 60(2).50 R.P.A., s. 62.51 R.P.A., s. 61 (1).52 Eastern Division of County of Cork (1911) 6 O'M. & H. 318, 346.

.. 53 R.P.A., s. 66(1).54 R.P.A., s. 66(3).,55 R.P.A., Fifth Schedule.5'~ R.P.A., s. 61 (2), s. 69.57 R.P.A., s. 72.58 R.P.A., s. 70.59 Perjury Act 1911, s. 5 (U.K.).'60 R.P.A., s. 72.61 R.P.A., SSe 76, 77.


1949 Act, no person other than the candidate or his election agent canincur expenses with a view to promoting or procuring the election of acandidate, on account of (a) holding public meetings or organisingpublic displays; or (b) issuing advertisements, circulars or publications;or (c) otherwise presenting to the electors the candidate, or his views,or the nature and extent of his backing, or disparaging anothercandidate, without the written consent of the election agent. If theelection agent gives that authorisation, then the expenses so incurredconstitute part of the candidate's election expenses.'62 If a personincurs that expense without the requisite authorisation he commits anillegal practice.163 Where the offence is committed by an association orcompany, the Act imposes a liability on all of its senior officers.6'4

Section 63 is assuming considerable importance in the scheme ofthe Act. Given the proliferation of interested groups and associationswho may wish to support a candidate, it is difficult to see what expensesthey can incur in this endeavour without being caught by the section.65

Practically, the section means that if the election agent gives anauthorisation, to that extent he reduces the amount which he and thecandidate can expend in the election. Consequently, the election agenthas, in reality, no great scope for giving such authorisations. Correspondingly, there is very little scope for supporters to obtain anyindirect financial hold over a candidate.

(iii) Contributions to candidate's expenses

If the size of modern electorates caused the demise of payments bycandidates to electors, at the same time it provided the mask behindwhich covert influence could possibly be acquired by interested partiesover candidates through the medium of contributions to campaignfunds. Today the Act requires that any person wishing to contribute tothe candidate's election expenses, whether by way of gift, loan, advanceor deposit, must pay the same to the candidate or to his election agentand not otherwise; or he will be guilty of 'an illegal practice.GI6' The election agent's statutory return of expenses must include a statement of allmoneys, securities, or equivalent of money received by him from thecandidate or from any other person for the purposes of electionexpenses, together with the name of every person from whom they werereceived.'67 Here, as with direct expenditure by supporters, the Actpractically curtails the possibility of any person obtaining significantcovert financial hold over a candidate. And in any event, through the

'62 R.P.A., s. 69(1); R. v. Tronoh Mines [1952] 1 All B.R. 697, 700.63 R.P.A., s. 63 (5).6,4 R.P.A., s. 63 (6).6,5 See e.g. D.P.P. v. Luft [1976] 3 W.L.R. 32.66 R.P.A., s. 61 (4).67 R.P.A., s. 69(3).


publication of the electoral return, it publicly discloses a candidate'ssources of financial support.

(5) Conclusions on the British model

The centerpiece of the Representation of the People Act today isundoubtedly the control imposed on electoral expenses. While thecriminal law has an indisputable place in the legislation, insofar as itdeals with the traditional forms of corruption, it is essentially backward looking. The forms of influence so widely practised and punishedin British campaigns of the nineteenth century have died with thedemise of the electoral systems and social conditions which permittedthem to flourish. Malpractice today has shed its naked forms. And theRepresentation of the People Act has moved with this change, movingfrom simple deterrence to regulations. The pressures ~hich today canput the "pure and free" ideal at risk are not only those brought tobear on the elector, but also those brought to bear on the candidate.Each can the more effectively be regulated by controlling the mostpotent source of influence-money.

The final comments to be made on the British system are, firstly,that compliance with the law is ensured by giving to the electoral courtwide powers to unseat successful candidates for transgressions of theAct, and secondly, that the Act itself throws on each individual candidate responsibility for preserving the electoral ideal. He, and hiselection agent, are positively obliged to ensure that their campaign isin all respects inoffensive. The consequences of failing in this areextreme. But in Australia, as will be seen, the story is a very differentone.

II. AUSTRALIAThe earliest comprehensive electoral Act passed in the colony of New

South Wales was the Electoral Act 1843. This was soon superseded bythe New South \Vales Electoral Act 1851, and the Victoria ElectoralAct 1851. These three Acts, largely similar in substance, were notwithout their distinctively Australian characteristics-particularly intheir control of malpractice. Initiating the British constitutional model,they struck at the crudest forms of electoral corruption-bribery,treating and undue influence.68 These they punished (a) by imposingcriminal sanctions on "corrupters", and (b) by unseating successfulcandidates who resorted to corruption. But imitation of Britain stoppedshort of adopting the Parliamentary rules of agency. A candidate wasonly to be liable for the acts of his authorised agents if those "actswere committed with his knowledge power or consent".69 This differ-

68 Electoral Act 1843, s.49; Electoral Act 1851, s.47 (N.S.W.); Electoral Act1851, s. 46 (Vic.).

69 Electoral Act 1843, s. 51; Electoral Act 1851, s.49 (N.S.W.); Electoral Act1851, s.48 (Vic.).


ence has been maintained ever since. It has lightened substantially theresponsibility which a candidate bears for his supporters' activities.Secondly, these Acts appeared to give to the tribunal hearing anelection petition alleging impropriety, some real latitude in taking itsdecisions: it was to "be guided by the real justice and good conscienceof the case without regard to legal forms".70 This formula is stillrepeated in most of the current electoral, Acts. It is not without itsdifficulties.71 Thirdly, voting under the early legislation was optional.Compulsory voting was first introduced in 1915 in Queensland, andhad, by 1942, spread to all other Australian jurisdictions.72 Significantly, compulsory voting postdates most of the electoral Acts currentlyin force and it is obvious that many of the electoral offences thereinare drawn to meet the contingencies of an optional voting system.

Throughout the last century, as the various colonies enacted electorallegislation, imitation of Britain was considerable. For example, thosecolonies which adopted schemes for controlling electoral expenditurerelied heavily for a model on the Corrupt and Illegal Practices Prevention Act 1883 (U.K.).73 But coming into this century the divergencefrom Britain in malpractice legislation becomes more marked. Thisdivergence, though, stems not so much from our striking out on ourown, as from Britain's updating of its own legislation. Indeed, it is fairto say that there is much in our legislation today which bears moreon the campaigns conducted in the boroughs of Victorian England,than on modern Australian elections. And, as will be suggested in thefollowing pages, the time has come for the Australian jurisdictions toupdate-and to render uniform-their malpractice legislation.

As yet, the State and Commonwealth electoral Acts have no uniformapproach to the control of malpractice-either in its naked, or in itsmore subtle, forms. The Acts are as notable for their dissimilaritiesas they are for their similarities. Those of South Australia, WesternAustralia and the Commonwealth are clearly interrelated in theirelectoral offence provisions. But they are by no means identical. TheTasmanian Act, while reflecting the above three, is less obviouslysimilar. The New South Wales and Victorian Acts differ substantiallyfrom all those mentioned. But they do share common features asbetween themselves. The Queensland legislation is quite noticeablyHnked to the British legislation. But judicial interpretation seems tohave rendered this link somewhat illusory. The Commonwealth, Victorian, Tasmanian and Western Australian Acts control, in form if notin substance, a candidate's electoral expenditure. To varying degrees

'70 Electoral Act 1843, s.42; Electoral Act 1851, s.61 (N.S.W.); Electoral Act1851, s. 60 (Vic.).

71 See e.g. Ithaca Election Petition [1939] St.R.Qd. 90.72 See Hughes, "Compulsory Voting" (1966) 1 Politics 81.73 See e.g. Electoral Act 1896, Part VI (Tas.).


these controls mirror now discarded British models-particularly thatof the Corrupt and Illegal Practices Prevention Act 1883 (U.K.). Butsignificantly, none has adopted the statutory election agent as anintegral part of their regulatory scheme.

For all their differences there are clear threads which link the Actsin their control of malpractice. Together, but not uniformly, they focuson three aspects of a campaign: (1) the commission of the traditionalforms of corruption; (2) electoral advertising; and (3) electoralexpenditure of candidates. In the remainder of this part each of thesewill be considered in turn.

( 1) Corruption, and illegal practices

All of the Acts punish, with relatively uniform sanctions, thecommission of bribery, treating and undue influence-though thedefinitions of these offences differ widely. In addition all, with theseeming exception of New South Wales and Tasmania,74 prohibitcertain types of illegal practices.75 These practices relate in the mainto the authorisation and publication of electoral advertisements, andto the publishing of untruths about, or defamation of, a candidate.Again there is very little uniformity between the Acts as to thepractices which are illegal. Finally, all jurisdictions have a variety ofsimple electoral offences.716 So far as a successful candidate is concerned, all Acts empower the relevant election tribunal to unseat himif illegal practices have been committed in the furtherance of hiscampaign.77 But, as will be seen, the grounds for unseating are narrowand specific-and indeed are derisory in comparison with those of theUnited Kingdom. This, it will be suggested, is one of the principalweaknesses in Australian electoral legislation for, as drafted, theunseating provisions do not compel compliance with the law-as is thecase in the United Kingdom.

74 The doubt with New South Wales and Tasmania arises because, while "illegalpractices" are punished in both states-N.S.W.: Parliamentary Electorates andElections Act 1912, s. 164; Tas.: Electoral Act 1907, s. 172-neither Act actuallydefines an "illegal practice".

15 See Cth: Electoral Act 1918, s.154, s. 161; Vic.: Constitution Act Amendment Act 1958, s.277; Qld: Criminal Code, s.105; S.A.: Electoral Act 1929,s. 144, s. 151; W.A.: Electoral Act 1907, s. 179, s. 187.

716 The illegal practices and electoral offences relevant to this article are detailedin the Schedule hereto, infra 228-230.

The principal Acts regulating the conduct of elections are as follows:Cth: Commonwealth Electoral Act 1918;N.S.W.: Parliamentary Electorates and Elections Act 1912-1975;Qld: Criminal Code; Elections Act 1915;S.A.: Electoral Act 1929;Tas.: Electoral Act 1907;Vic.: Constitution Act Amendment Act 1958;W.A.: Electoral Act 1907.

77 Cth: s. 191; N.S.W.: s.164; Vic.: s.287; Qld: (Elections Act) ss.124-127;S.A.: s. 182; W.A.: s. 164; Tas.: s.172.


It is not surprising that the more naked forms of corruption ofelectors have rarely been seen before the Australian courts thiscentury.78 This, as in Britain, is doubtless due to the size and anonymityof modern electorates. But it is, nonetheless, instructive to look brieflyat our offences of bribery, treating and undue influence. Save inQueensland, these are the only illegal practices which, if committed bya candidate, will result in his election being automatically avoided ifchallenged. They doubtless have their curiosities as drafted. But theyare not totally devoid of significance in modern campaigns. Themajority of the Acts incorporate treating within the offence of bribery.But for the purposes of this article it will be mentioned separately.

Ca) Bribery

In all jurisdictions the promIsIng, offering, suggesting, gIvIng oraccepting of any valuable consideration to induce a vote or omissionto vote, or to secure the return of a candidate, is bribery.79 So defined,bribery covers both inducements to voters in respect of their vote and,it would seem, inducements to candidates in respect of the recommended allocation of preferences. From this central definition the Actsthen diverge in various directions. The Commonwealth, South Australian, West Australian and Tasmanian Acts extend bribery to inducinga candidature, support for or opposition to a candidate, and withdrawalof a candidate. The Commonwealth and Western Australian Actscover, in addition, inducements influencing the enrolment as an electorof an aboriginal native.

The Queensland Criminal Code strikes out into fresh territory byencompassing within bribery, the promising, etc. of any benefit to aperson on account of his acting or joining in a procession during anelection! Victoria and New South Wales bring within the offencepromises, etc. to retain or dismiss an employee in order to induce himto vote or to refrain from voting-conduct more likely to occur in anoptional voting system, and covered, in any event, in the other jurisdictions by the offence of undue influence-or on account of hishaving voted or refraining from voting. Victoria impugns, in addition( 1) the hiring by a candidate or his agent of conveyances to carryelectors to or from polls-this offence is covered by the treatingsections in all other jurisdictions except Queensland and Tasmania, andin Tasmania such a hiring seems to be positively authorised;80 and (2)

'78 But see e.g. Chanter v. Blackwood (1903) 1 C.L.R. 39 (allegations ofbribery and undue influence); Crouch v. Ozanne (1910) 12 C.L.R. 539 (allegationsof bribery and undue influence); Woodward v. Maltby [1959] V.R. 794 (allegations of bribery and treating); and in 1976 committal proceedings arose in theAustralian Capital Territory out of an allegation of bribery of a Senate candidateto secure a favourable allocation of preferences in the 1975 federal elections.

79 Cth: s.156; Qld: (Code) s. 103; N.S.W.: s. 147; Vic.: s. 241; S.A.: s.144;W.A.: s.181; Tas.: s.146.

80 See Tas.: s. 139 (g).


the promising, etc. by a candidate of any gift or donation to any clubor association after a parliamentary dissolution or the creation of aparliamentary vacancy, and before or on the day of polling-suchgifts are regarded in some other jurisdictions as quite trivial offences.81

Apart from the obvious lack of uniformity in the bribery legislation,several other of its features should be noted. Firstly, the relevantsections were obviously enacted before the advent of compulsoryvoting, this being reflected in their emphasis on inducements to vote orto refrain from voting. But this notwithstanding, they are sufficientlywide in terms to catch bribery in a compulsory voting system.Secondly, only four jurisdictions directly advert to bribery of a candidate as such, and then only in so far as the bribe is to induce acandidature or withdrawal of a candidate. No Act legislates in directterms on bribery of a candidate to secure a recommended allocation ofpreferences, and it is to be doubted whether the bribery provisionswere drafted with a preferential voting system in mind.82 But again,these provisions do seem to be capable of catching such a form ofbribery83-even if only fortuitously in some states.

Thirdly, while it is doubtless the case in Australia (as in the UnitedKingdom) that naked bribery of electors is a thing of the past, yet inAustralia the appearance of a form of bribery can arise in campaignsthrough the use of advertising gifts. While Sir Thomas Maltby's boxesof matches84 may not have been offensive, such gifts can obviouslyattract suspicion. In the absence of effective controls on a candidate'selectoral expenditure it may well be that this type of advertisingwarrants direct legislative regulation.

(b) Treating

The Commonwealth, South Australian, Western Australian andTasmanian Acts define "treating" as (1) the provision of meat, drinkor entertainment after nominations have been officially declared, witha view to influencing a vote, and (2) and with the exception ofTasmania, the provision of carriage hire for an elector going to orfrom the poll.85 Again, in the Commonwealth and Western AustralianActs, treating extends to influencing aboriginal enrolment as anelector.

In New South Wales and Victoria, a two-tier definition is given(1) a candidate commits treating when he corruptly, by direct or

81 E.g. Cth: s. 150; W.A.: s. 100; Tas.: s.145.82 On the history of preferential voting in Australia see Mayer and Nelson

(eds.), Australian Politics: A Third Reader (1973) 293.83 This is obviously so in the Commonwealth, S.A., W.A. and Tas., and argu

ably so in Qld, Vic. and N.S.W.84 See Woodward v. Maltby [1959] V.R. 794.85 Cth: s. 156; S.A.: s. 147; W.A.: s. 182; Tas.: s. 146.


indirect means and at any time before or during an election, providesmeat, drink, entertainment or provisions so as to forward his ownelection, or so as to corruptly influence the voter;81

6 and (2) anyperson is guilty of treating who provides meat, drink or entertainmentby way of refreshment on account of an elector's voting or beingabout to vote.87 By an amendment in 1960, Victoria saved from treating the serving of light refreshments after a public political rally.88Finally, in Queensland, to treat is to corruptly provide Jood, drink orlodging to any person on account of any act done or to be done byan elector at an election in his capacity as an elector.8'9

Comparing the Acts we find no uniformity-( 1) as to what canconstitute a treat; (2) as to the purpose for which a treat can or mustbe given, to be offensive; and (3) as to the time at which the treatingmust occur. And there is no uniformity in the penal consequences oftreating.

The very language of the treating sections carries the stamp ofhistory. The term "entertainment", for example, does not encompassall the modern connotations of that word. Rather its meaning islimited to those incidentals associated with the provision of food anddrink.90 So whatever else may be said of a candidate's street cornerbrass band, it is not "entertainment". But the offence itself is nottotally without significance. A treat can inhere in advertising gifts ofthe food and drink variety91 and it can easily be practised as betweenelectors. One can only reiterate the frequent observation of theEnglish election judges that it can be a foolish and imprudent thing tobe indulgent at election time.

(c) Undue Influence

The common core of all definitions of undue influence is aninterference with the free exercise of the franchise of any voter.92 Alljurisdictions exemplify such interference with extended definitionsvariously emphasising such acts as coercion, duress, the infliction ofinjury-temporal or spiritual-and the like. Under the Commonwealthand Western Australian Acts the offence extends to interfering with anaboriginal native's choice whether or not to enrol as an elector. Andthese two Acts together with the South Australian and Tasmanian

86N.S.W.: s.149; Vic.: s.244.87 N.S.W.: s. 150; Vic.: s.244.88 Vic.: s. 245A.89 Qld: (Code) s. 10l.90 Woodward v. Maltby [1959] V.R. 794.91 The National press reported a candidate advertising with bottles of wine in a

recent election.92 Cth: s.159; Qld: (Code) s. 102; N.S.W.: s. 151; Vic.: s.246; S.A.: s.149;

W.A.: s. 184; Tas.: s. 147.


Acts proscribe influencing a candidature or the withdrawal of acandidate.

However, it is the South Australian and Western Australian Actswhich extensively define the offence. In South Australia the offenceencompasses the publication or exposure to public view of any printedmatter containing any untrue statement defamatory of any candidateand which is calculated to influence any vote, or the simple verbalmaking of such a statement. There is a similar offence in WesternAustralia, though it excludes the making of purely verbal statements.Queensland and Victoria constitute illegal practices out of suchpublications.93

The Western Australian definition of undue influence includes, inaddition-(a) interference with an elector at or near a polling boothwith the intention of influencing or advising him as to his vote-thisis also an electoral offence of some gravity in South Australia,94 but inmost other jurisdictions is only covered by the minor offence ofprohibited canvassing near polling booths;95 (b) the personal solicitationof votes by a candidate on polling days-this is an illegal practice inSouth Australia;91

6 and (c) attendance by a candidate at an electoralmeeting on polling day other than at a committee meeting-again, thisis an illegal practice in South Australia.91

Apart from the obvious dissimilarities between the Acts it is againworth noting that the offences as drafted, in Queensland, New SouthWales and Victoria in particular, are peculiarly appropriate to anoptional voting system. It is only fortuitous that they can be interpretedso as to embrace influence in a compulsory voting system. Of theoffence itself, it can be said, as of the offence in the United Kingdom,that it is still one to be reckoned with in modern elections. And inAustralian campaigns it is one which can still be practised both asbetween electors and on behalf of candidates.

Firstly, as between electors: as was seen in the discussion of undueinfl,uence in the United Kingdom, threats to businesses, to employees,and to tenants, licensees, etc. can easily transgress the law. Coercionof employees, for example, may well be implicit in circulars holdingout the prospect of redundancy as 'a consequence of an unfavourableelection result. Secondly, undue influence and candidates: unlike in theUnited Kingdom, postal voting can assume considerable importancein some Australian constituencies. Given the ease with which candidates can identify postal voters, and given the efforts that are often

93 Qld: (Code) s. 105; Vic.: s. 262.94 S.A.: s.154.9,SCth: s.171; Qld: s.76; Vic.: s.193; Tas.: s.157; in addition Western Aus

tralia has a prohibited canvassing provision, see W.A.: s. 192.96 S.A.: s.151.91 S.A.: s. 151.


put into the securing of favourable postal votes particularly fromelectors confined to institutions, candidates and their supporters shouldtake great care that their attention to postal voters does not in anycase amount to an improper "interference with a voter's free franchise".It may well be that the interests of a free election would better beserved by denying candidates the right to obtain lists of postal voters.Even if the attention paid to such voters rarely assumes offensiveproportions within the terms of the electoral Acts, it may, nonetheless,be thought that the courteous, if sometimes persistent, attention ofcandidate's supporters should be subject to some regulation-if onlyto dispel the suggestion that influence is being exerted. Some jurisdictions have attempted to ensure by criminal sanctions that at least thestatutorily required autho,rised witness of a postal voter does notattempt to influence or to interfere with the voter.98

Re-inforcing the offence of undue influence, all jurisdictions havecreated a number of minor electoral offences controlling activities outof which improper influences may develop. In the area of postal voting,for example, all Acts prohibit a candidate being an authorised witness.99

The Victorian Act, in addition, punishes attempts by employers toinduce or to influence an employee's postal vote.1 Under the Commonwealth, South Australian, Western Australian and Tasmanian Acts, anemployer is directed, in certain circumstances, to allow an employeeleave of absence to vote.2 Finally, all jurisdictions punish, with varyingdegrees of severity, disruptive conduct in polling booths.3

(2) Other illegal practices and electoral offences

Passing from the traditional malpractices to general electoral offencesone at once encounters the amazing diversity in offences and insanctions that characterises Australian election law. These additionaloffences, in so far as they are related to the "pure and free" ideal, areset out in the schedule to this article. Little purpose would be servedby detailing them again here. However, some generai comments shouldbe made.

The two most obvious causes for concern suggested by the scheduleare-

(1) the disparity in penalties for offences common to some or alljurisdictions; and

98 Cth: s. 93; N.S.W.: s.. 114 I, K; W.A.: s. 95; Tas.: s.145.99 Cth: 91 B; Qld: (Elections Act) s. 71; N.S.W.: s. 114 B; Vic.: s.238; S.A.:

s. 80; W.A.: s. 94; Tas.: s.79.1 Vic.: s.237.2 Cth: s. 175; S.A.: s. 157; W.A.: s. 196; Tas.: 5.159.3 Cth: s. 170, s. 179, s. 180; Qld: (Code) s. 108; N.S.W.: s. 111; Vic.: s.192;

S.A.: s. 154; W.A.: s. 190; Tas.: s.157.


(2) the variation in offences between the jurisdictions. If, forexample, an elector stuffs a ballot box in a Queensland election themaximum penalty is seven years jail. But if the stuffing occurs in aFederal election, the maximum is only six months. And the examplescan be multiplied.

It must be questioned whether these disparities and variations aredesirable. There is much in the law that carries the hand of the past,much that has little relevance to modern electoral campaigns. Shouldsteps be taken to update, and to bring about substantial harmonybetween our jurisdictions in our electoral offences? Our legislationsurely stands condemned at the moment when it cannot even be saidthat a bribe is a bribe by any other name.

(3) Agency and unseating a successful candidate

It has been indicated already that the potency of the British punitivescheme lies in the combined operation of the parliamentary rules ofagency and the wide powers of the election tribunal to declare acandidate not elected because of his or his agents' corrupt or illegalpractices. Consequently, a British candidate is positively obliged tosupervise his supporters, and the candidates themselves carry theprimary responsibility for maintaining the "pure and free" ideal. Such isnot the case in Australia. From the earliest election Acts only the morenarrow common law rules of agency were applied to candidates, andthe powers given to election tribunals to unseat a successful candidateon the grounds of his own or of his agent's misconduct, were greatlycurtailed.

In all jurisdictions a successful candidate will be unseated automatically if he persQnally indulges in bribery, treating, or undue influence;4a considerable relaxation on the British legislation which, as has beenseen, unseats a candidate if he commits any corrupt or illegal practice.But more significantly, all jurisdictions (with the exception of Queensiand) provide only for the unseating of a successful candidate on thegrounds of another's misconduct where-(a) that other has, with thecandidate's knowledge or authority committed, or attempted to commit, bribery, treating or "corruption"-whatever this term may mean;or (b) that other has committed any other illegal practice, with orwithout the candidate's knowledge or authority, provided that theelection tribunal is satisfied that the election was likely to be affectedand that it is just that the candidate should be declared not dulyelected.5 The avoidance provisions are not notable examples of

4 Cth: s. 191; N.S.W.: s.164; Vic.: s.287; Qld: (Elections Act) ss.124-127(which adds personation); S.A.: s. 182; W.A.: s. 164; Tas.: s.172.

5 Cth: s. 191; N.S.W.: s.164; Vic.: s.287; S.A.: s.182; W.A.: s. 164; Tas.:s. 172. Again it should be noted that there are verbal differences between the Acts.The Victorian and South Australian Acts, for example, do not use the undefinedword "corruption" but use "undue influence" in its stead.


unambiguous drafting, and may bear an interpretation different fromthat given above. But South Australia alone attempts to make complete nonsense of its avoidance provision by providing in another partof its Act that if any candidate is found by the election tribunal to beguilty of any illegal practice-and this would seem to include illegalpractices committed on his behalf and with his knowledge and consent6-then his election, if successful, shall be declared void.' Thislatter provision is a thoroughly inappropriate adaptation of section 4of the Corrupt and Illegal Practices Prevention Act 1883 (U.K.).

But irrespective of the difficulties in South Australia, it seems beyondquestion that a candidate will only be liable for acts done on his behalf(1) if he has actually commissioned them himself, or (2) if he hasknowledge of them even though he has not commissioned them. Anobvious incentive is thus provided to a candidate to remain uninformedof his supporters' activities. His supporters likewise have an incentiveto keep the candidate uninformed. In any event, the only activities ofsupporters which can put a successful candidate's seat in immediatejeopardy are bribery, treating and undue influence, these being the only'illegal practices which can produce automatic unseating.

The avoidance provisions in Queensland are an inaccurate copy ofthose of the United KingdomS and, as was indicated in the IthacaElection Petition,9 this inaccuracy robs them of much of their intendedeffect. Insofar as a candidate's responsibility for his agents is concerned, it would seem that he will be automatically unseated-(a) ifhis agents commit corrupt practices10 whether with his consent or not;and (b) if his agents commit illegal practices11 with his knowledge andconsent. The tribunal has a limited power, as in the United Kingdom,to relieve a candidate of trivial acts of treating and undue influencecommitted contrary to his instructions.

The Queensland Act does not define agency for the purposes ofelection law, and it has been suggested that it is open to the tribunalto adopt the parliamentary rules.12 But this suggestion has won littlejudicial support.13 In the Ithaca Election Petition14 the QueenslandFull Cour,t decisively rejected th~ parliamentary rules: "agency inelection matters must be proved as strictly as in every other case at

6 S.A.: s. 161.7 S.A.: s. 153; compare Cth: s. 211; W.A.: s. 186; Tas.: s. 182; Vic.: s.249.S See Qld: (Elections Act) SSe 124-127.9 [1939] St.R.Qd. 90.

10 Defined in Qld: (Elections Act) S. 4 to mean treating, undue influence, briberyand personation.

11 Defined in Qld: (Code) SSe 105, 106.12 See e.g. per Evatt J. in the High Court of Australia in the Ithaca Election

Petition [1940] St.R.Qd. 265, 281.13 See e.g. Flinders Election Petition [1958] Qd.R. 324, 332 per Philp J.14 [1939] St.R.Qd. 90.


common law".15 Consequently, a person will only be an agent of acandidate if he is authorised by the candidate to act on his behalf insome matter, or if he is so authorised by a person having the authorityof the candidate to appoint agents.

In all Australian jurisdictions, then, the law of agency, and ofunseating for agents' misconduct, differs markedly from that of theUnited Kingdom. Nonetheless, in one Western Australian caseFranklin v. George16-the parliamentary rules were applied, thoughdoubtless in error. But it may be thought that there is some justice inthe views there stated by Northmore C.J. on election agency.

[I] am not aware that the purity and freedom of elections is anyless desirable in a Colony than in England, and in my opinionthe common law of England [i.e. the parliamentary "commonlaw"] is the common law of this State on that point.... If it wereotherwise it would lead to a deplorable state of affairs, because inthat case the agents of candidates could indulge freely in briberyand corruption with perfect immunity so far as the candidatesthemselves were concerned...11

As Australian law now stands-and with the partial exception ofQueensland-a candidate is under no positive obligation to ensurethat his supporters observe the letter and spirit of the law. Indeed, thelaw provides the candidate with a positive incentive to remain uninformed of his supporter's activities. If he can be kept insulated fromany malpractices, he is safe. We apparently do not feel the need tosubscribe to the view that "purity of election is more important thanthe success of any particular person in his candidature".18

Should the British law be adopted in Australia? It may well beconsidered that little purpose would be served in this given the relativeunimportance of the traditional forms of malpractice in modernelections. The principal argument in favour of the United Kingdomlaw is, it is suggested, that it brings home to a candidate responsibilityfor all aspects of the campaign conducted on his behalf. It obligeshim to keep his supporters constantly supervised and to ensure thatthey are acquainted with the law that regulates their activities. It maybe questioned whether at the moment this acquaintance is oftenanything more than fleeting.

(4) Electoral advertising

The obvious ideal in the electoral process is that an elector shouldmake an informed choice based on full information about issues,candidates, policies and parties. The reality, of course, is more that an

15 Ibid. 140 per Blair C.J.16 (1934) 37 W.A.L.R. 45.1'7 Ibid. 47.18 BorQugh of Norwich (1886) 54 L.T. 625,626 per Denman J.


elector knows in part and prophesies in part. But legislation nonetheless has a clear role in ensuring that the ideal does not becomethoroughly perverted. It should ensure (1) that the elector is notpositively misled, and (2) that there is some proportion in the quantumof propaganda fed to electors by the various candidates and -parties.In all jurisdictions in Australia attempts have been made to eliminatemisleading advertising. Secondly, the four jurisdictions which controlelectoral expenditure, can, to the extent that those controls areenforced, regulate the quantum of a candidate's advertising. But theexpenditure of political parties as such, go.es as yet, unchecked.

In this section on advertising only the existing controls on misleadingand unfairly prejudicial advertising will be considered. In the following,control of a candidate's expenses is discussed. But at no point doesthis article enter upon the contentious issue of control of the expenditure of parties. Even though that subject undoubtedly impinges onthe "electoral ideal" in a variety of ways, it raises issues going farbeyond the scope of this article.

(a) Misleading-prejudicing advertisements

To maintain at least minimal standards of probity in electoraladvertising and propaganda, all Acts have made attempts to preventthe circulation of untruths, either generally or concerning candidates.The Commonwealth, Tasmanian, Victorian and New South Wales Actsmake it an offence to print or publish any advertisement, card, etc.containing any untrue or incorrect statement intended or likely tomislead or improperly interfere with an elector.19 The Commonwealth,Queensland, Victorian, South Australian and Western Australian Actspunish the publication, in defined circumstances, of untrue ordefamatory statements concerning a candidate.20 Furthermore, mostjurisdictions prohibit the use of how to vote cards etc. containingdeceptive representations of ballot papers.21 And in three jurisdictions-the Commonwealth, South Australia and Tasmania-supporterscannot publish certain matters concerning, or claim association with,candidates without the candidate's written consent.22

So as to ensure that an elector appreciates that matter he is readingabout an election is in fact simply an advertisement, all Acts requirethat the name of the person authorising the advertisement and/or thename of the printer appear on the advertisement.23 Finally, the Commonwealth, New South Wales, Victorian and South Australian Acts

19 Cth: s. 161; Tas.: s. 154; N.S.W.: s. ISlA; Vic.: s. 261A, s.262.20 Cth: s. 181; Qld: (Code) s. 105; Vic.: s. 262; S.A.: s! 148; W.A.: s.183.21 Cth: s. 161; N.S.W.: s. ISlA; Vic.: s. 261A; Tas.: s. 154.22 Cth: s. 181A; S.A.: s. 155a; Tas.: s. 154.23 Cth: s. 161; Qld: (Elections Act) s.100; (Code) s. 106; Vic.: s. 261A; S.A.:

s. 151; W.A.: s. 187; Tas.: s. 154; N.S.W.: s. ISlE.


impose certain prohibitions on the size and positioning of electoralposters and electoral drawings.24

It is surely a little surprising that, even at the most basic level ofcontrolling misleading and unfair advertising, the Acts are markedlydissimilar. But what is more surprising is that they fail, by and large,to give a candidate any effective redress to ensure that repeatedinfringements of the advertisement laws do not occur. This omissionis glaring, and its consequences well illustrated in Webster v. Dobson,25where, at a House of Representatives election, members and candidatesof the Liberal Party were held to have no legal standing to prevent arival group--the "Liberal Reform Group"-from distributing electoralcards said to be misleading.26 At the moment Victoria alone gives awide power to obtain injunctions in this context.27 This deficiency inother jurisdictions is one needing rectification..

(5) Control of electoral expenditure

No Australian jurisdiction has taken regulation of a candidate'sexpenses to the lengths adopted in Britain. Only in four jurisdictionsthe Commonwealth, Victoria, Western Australia and Tasmania-doesany regulation exist at all, and there the reflection of the Britishscheme is blurred, and for obvious reasons. The model for Australianregulation was the United Kingdom's Corrupt and Illegal PracticesPrevention Act of 1883 .. That Act imposed a ceiling on a candidate'scampaign expenditure. It constituted the office of election agent, andchannelled financial dealings through him. It limited lawful electoralexpenditure to certain specified types of transaction. It provided forpublication of expenses after an election. But it did not control theexpenditure of a candidate's supporters-this was only introduced bythe Representation of the People Act 1918 (U..K.). In adopting the1883 model the Australian jurisdictions made one notable omissionthe key figure of the election agent. With this omission came theconsequential failure to adopt the machinery of channelling financialdealings-receipts and disbursements-through a single, statutorilyrecognised individual. Furthermore, the 1918 British "supporters"legislation seems only to have been adopted in two jurisdictions-theC'ommonwealth and Tasmania. So today our regulatory schemes areones which-

(a) impose a ceiling on a candidate's expenses;(b) prescribe lawful types of expenditure by candidates; and(c) require publication of electoral disbursements-but not

contributions.

24 Cth: s. 164B; N.S.W.: s. 151B; Vic.: s. 261B; S.A.: s. 155b.2,5 [1967] V.R. 253.2

1

6 It is interesting to note that clause 56 of the ill-fated Commonwealth Electoral Laws Amendment Bill 1974 sought to overcome this decision.

27 Vic.: s. 263.


(a) The Financial Ceiling

(i) The CommonwealthWhile the Commonwealth Act is silent as to the point in time from

which electoral expenses are to be computed, it limits the totalexpenditure which a candidate can authorise or incur in respect of hiscandidature to $1,000 in the case of a Senate election, and $500 inthe case of a House of Representatives election.28 The Act defines"electoral expenses" to include all expenses incurred by or on behalfof or in the interests of any candidate at or in connection· with anyelection. However, expenditure in purchasing electoral rolls, and thepersonal and reasonable living and travelling expenses of the candidateare excluded from the definition.29

No person, body or association, as agent or otherwise, can incurexpenditure on a candidate's behalf without his written consent. Ifthe consent is given the expenditure becomes part of the candidate'sexpenses.so If the consent is not given and the expense is incurred, anoffence against the Act is committed.31 The Act, furthermore, requiresthe person, etc. incurring the expense to make a statutory return ofexpenses.32 The close resemblance which this "supporters" controllegislation bears to that of the United Kingdom is not surprising giventhat it was enacted nine months after such control was first adoptedin the United Kingdom.

Unfortunately, at the moment, it is impossible to discuss the virtuesor otherwise of the provisions of the Act. It is no secret that these areopenly flouted by candidates-and flouted notwithstanding that so todo constitutes an offence under the Act and an illegal practice, thoughhardly one likely to result in the candidates being unseated, as is thecase in the United Kingdom.33 The undesirability of this situation isself-evident. Either the whole scheme should be abolished, or it shouldbe amended so as to prescribe a financial limit felt to be reasonable toconduct an effective campaign, and that limit should be policed ifnecessary through the sanction of unseating. But to continue thepresent system is simply to invite a vindictive criminal prosecutionagainst a candidate unpopular with some member of the public.34 Atthe moment little is being done to enhance respect for Federal electorallaw.

(ii) VictoriaThe financial ceilings in Victoria are $2,000 in the case of a candi

date for the Council, and $1,000 in the case of the Assembly.35 The

28 Cth: s. 145.29 Cth: s.147.30 Cth: s. 145.31 Cth: s. 148.32 Cth: s. 152.33 Cth: s. 161; s. 162; s. 191; ct. R.P.A. s. 70; s. 72; s. 139.34 Cth: s. 209; s. 161; s. 162.35 Vic.: s. 257; Sixteenth Schedule.


Act contains the usual exemption from a candidate's expenses of hispersonal and travelling expenses.316 Failure to comply with the statutorylimit constitutes an offence under the Act,37 and an illegal practice.Victoria's legislation maintains a robust silence on expenditure eitherby agents on behalf of a candidate, or by non-agent supporters inpromoting a candidate. As in Britain before 1918, this has led to thepractical circumvention of the control on candidates' expenditure,campaign expenses being incurred by supporters, with candidates oftensubmitting "nil" returns.

(iii) Tasmania

In elections to either House no candidate can incur expenses inexcess of $1,500.38 "Electoral expenses" are defined in terms similarto the definition in the Commonwealth Act.3D The distinctive featureof the Tasmanian Act is that, in an obscurely worded provision, itseems to include within a candidate's expenses all the expenditure ofsupporters incurred with a view to procure or to promote his election,provided it is incurred with his approval.40 If such expenditure isincurred otherwise than with the candidate's sanction it would seemthat an offence is committed under the Act.41 But as with the Commonwealth Act, these provisions seem to be honoured in the breach.Contravention of the electoral expenditure provisions is an offence.42

But such contravention is not, in express terms, declared to be anillegal practice.

(iv) Western Australia

Under the Electoral Act no expense can be incurred or authorisedby a candidate or by his agents in excess of $1,000 in the case of theAssembly, and of $2,000 in the case of the Council.43 The definitionof "electoral expenses" in the Act is somewhat narrower than in theother jurisdictions in that it exempts the cost of electoral rolls,stationery, postage, telegrams, telephone charges, messages, and thepersonal and reasonable living and travelling expenses of the candidatein connection with the election.44

Authorised expenditure by agents clearly constitutes part of thecandidate's expenses. Indeed, any unauthorised expenditure by anagent or person purporting to be an agent is an offence against the

36 Sixteenth Schedule.37 Vic.: s. 257; s. 264.38 Tas.: s.137.3'9 Tas.: s. 140.40 Tas.: s. 138.41 Tas.: s. 138; s. 149.42 Tas.: s.149.43 W.A.: s. 174.44 W.A.: s.175.


ACt.45 Equally clearly expenditure by non-agent supporters to promotea candidate does not form part of a candidate's expenses. Contravention of the electoral expenditure provisions is again a criminal offenceand an illegal practice.46

(v) Commentary on the Existing Ceiling System

Where a limit is imposed on expenses it is obviously imperative thatthe limit be subjected to periodic review. As soon as it ceases to bearany reasonable relationship to the cost of running of a frugal butefficient campaign, a new malpractice is born-evasion or disregardof the ceiling. Secondly, little purpose is served by maintaining-andenforcing-controls on a candidate's expenses if, at the same time,independent supporters are allowed to spend freely to promote hisinterests. To leave the one unregulated is to invite evasion by theother. As has been seen, supporter control has been a feature of theBritish legislation since 1918. Thirdly, the most effective method ofensuring compliance with the expenditure limit is to make knowingcontravention of that limit not only an illegal practice, but also onewhich will automatically ~nseat a candidate if his election is challengedon that ground. As has been seen, such is already the law in Britain.

(b) The Lawful Types 0/ Expenditure

Unlike the modern British legislation, but as with the 1883 Act,41the four Australian Acts designate the only types of electoral expenditure which will be lawfu1.48 The object behind classifying permissibleexpenditures in the British 1883 Act seems to have been to minimisethe possibility of bribery by indirect means. It may be doubted whetherthis object is served in any useful way in the current Australian Acts-and indeed, whether any useful purpose is served today by thesystem of classification.

There is a fair degree of uniformity in the permissible expendituresin the four jurisdictions. In all, expenses can be incurred in respect of-

(1) the publishing, etc. of addresses and notices-though it shouldbe noted that there are significant differences in wordingbetween the provisions of each Act;

(2) committee rooms;

(3) public meetings and the places therefore; and

(4) scrutineers.49

45 W.A.: s. 199.46 W.A.: s. 187(3); s. 188.41 Corrupt and Illegal Practices Prevention Act 1883 (U.K.).48 It is interesting to note that both the New Zealand and Canadian electoral

Acts now both follow the modern British approach; see N.Z.: Electoral Act 1956,SSt 133 et seq; Canada: Electoral Act, R.S.C. ChI 14, s. 63.

49 Cth: s. 146; Vic.: Sixteenth Schedule; W,A.: s. 176; Tas,: s, 139,


Under the Commonwealth Act expenses may also be incurred foradvertising and broadcasting and also for stationery, telephones, etc.The latter expenditure is permissible in Tasmania and Victoria, but isan exempted expenditure in Western Australia. In Tasmania andVictoria expenses may be incurred for the purchase of electoral rolls-but such expenses are exempted in the Commonwealth and WesternAustralian Acts. Under the Victorian and Western Australian legislation alone, it is permissible to pay designated agents. Finally, inTasmania expenses may be incurred in conveying electors to the poll-such expenditure in most other jurisdictions can constitute briberyor treating. As with any contravention of the expenses provisions~

failure to comply with the lawful expenditure requirements in eachAct is an offence.

One is tempted to question whether the classifications today accom~

modate the needs of modern campaigns. The Commonwealth apart,can a candidate in the other three jurisdictions expend money on radioand television broadcasts? He is not authorised to do so in expressterms. Surely it would be preferable today to leave it to the candidateand his advisers to determine how they should allocate their fundswithout the imposition on them of a classification system. An unrealisticclassification system only invites transgressions of it.

Secondly, irrespective of whether expenses are or are not restrictedto a limited "shopping list", consideration should be given to regulatingthe manner in which expenses can, be incurred, and in particular, bywhom they can be incurred on the candidate's behalf. The electionagent device in the United Kingdom does, it is suggested, make theBritish expenditure control system credible, at least insofar as itregulates candidates. By tying both contracts for expenses, and disbursements on account of expenses, to the same statutorily recognisedindividual, checks are built into the system. The possibility of irregularity occurring is equally diminished by having but one paymaster-and a paymaster who is liable to stiff penalties if he fails properly todischarge his function.

(c) Publication of Expenses

Within prescribed times after an election-varying from 30 days inTasmania to three months in Western Australia-a candidate mustsubmit to the electoral authorities a return in the prescribed formdetailing (a) all electoral expenses paid; and (b) all disputed andu"npaid claims for electoral expenses.50 Failure to file a return, andthe filing of a false return, are offences under the respective Acts.51

In Victoria and Tasmania express provision is made to exculpate a

50 Cth: s. 151; Vic.: s. 259; W.A.: s. 177; Tas.: s.141.51 Cth: s. 161; Vic.: s. 257; s. 259; W.A.: s. 187; Tas.: s.149.


candidate who innocently breaches the return requirements.52 A similarprovision in the British Act has been found to be a necessary anduseful adjunct to control of expenditure legislation. There is obviouslylittle to be gained from punishing a candidate who conscientiously butin the event unsuccessfully attempts to comply in all respects with therelevant law;53

With the exception of Western Australia, a candidate's electoralreturn is open to public inspection for varying lengths of time at theappropriate electoral office, on payment of a minimal fee.54 Thesepublication provisions are indisputably vital to the whole scheme ofregulating expenses, in that their object is to bring the financial dealings of a campaign out into "the light of day". Significantly, though,our publication requirements settle for a "half light" for, while acandidate must disclose how he disburses his campaign fund, he neednot disclose the sources from which that fund is derived. Here again,and as with the election agent, we have not seen fit to adopt completelythe requirements of the British 1883 Act.55 This latter form ofdisclosure-of contribution to campaign funds-is surely as necessary,if not more necessary, to regulatory legislation if it is accepted thatone of the objects of such regulation is to minimise the possibility ofpersons obtaining covert influence over a candidate through financialties.

III. A CASE FOR REFORM?

This review of Australian electoral legislation can leave no groundsfor complacency with the existing law. It suffers from age, obscurity,and lack of uniformity. In many respects it is tied to now discardedBritish legislation-and legislation which was moulded to meet theevils inhering in the electoral systems of Victorian England. Australia'scopying of Britain, furthermore, has been a selective one. Thetendency has been to relieve our candidates of the more exactingrequirements and responsibilities imposed on British candidates. Onecan only conjecture at the reasons behind this. It is equally fair to saythat the British legislation drawn upon demonstrates an obviouscommitment to the "pure and free" ideal. One can ask whether ourcurrent Acts reflect on their faces the same enthusiasm for that ideal.

As has been indicated at various points in this article the State andCommonwealth Acts are in urgent need of legisl~tive attention. Theimpetus for reform will most likely come in the Commonwealthsphere and, it is suggested, it is the Commonwealth which should take

52 Vic.: s. 260; Tas.: s. 142.53 For the U.K. provision see R.P.A. 1948, s. 145; and e.g. Re Bedwellty Elec

tion (1965) 63 L.G.R. 406; Re Wakefield Election (1966) 64 L.G.R. 383.54 Cth: s. 151; Vic.: s. 261; Tas.: s.141.55 See Corrupt and Illegal Practices Prevention Act 1883, s. 33 (f) (U.K.).


the lead in enacting modern, comprehensive and effective electorallegislation. The deficiencies in the steps so far taken to control and toeliminate malpractice in particular are glaring. Some of the morenotable areas in need of reform together with suggestions for amendment or innovation can readily be listed.

( 1) While the traditional offences of bribery, treating and undueinfluence have a clear place in electoral legislation, they should at leastbe drafted to meet the specific requirements of a compulsory and apreferential voting system. Furthermore, in the case of preferentialvoting, events in the Senate election of 1975 indicate a clear need forlegislation to deal directly and unambiguously with the bribery ofcandidates to secure a favourable allocation of preferences.

(2) Certain modern Australian electoral practices which can becaught by the offences of bribery, treating and undue influence should,today, be subject to direct regulation. The growing phenomenon ofthe use of advertising gifts should either be condoned expressly or,and more properly it is suggested, be banned outright. The time-wornbribery and treating legislation is inadequate to deal with this practice.Secondly the contentious issues surrounding postal voting need attention. The pressures which can be, and in some cases are, brought tobear on postal voters whether in institutions or otherwise, can onlygenerate concern as to aspects of the postal voting system. One cannotfor one moment suggest that the problems raised by postal voting areeasily solved. They may, however, be alleviated to some extent ifcandidates were denied access to the lists of postal voters, and ifcanvassing in institutions containing significant numbers of postalvoters was regulated by, for example, limiting the times at whichcanvassing could be conducted, and by requiring all interested partiesto canvass only at those times.

(3) Of Australian electoral offences generally, the great variationin offences and in sanctions between jurisdictions seems undesirable.There are doubtless local and historical explanations for, some of thesevariations. But the principal reason for the differences would seem tobe that the Acts of the seven jurisdictions are, in their detail, based onthree different models. The Commonwealth, South Australian, WesternAustralian and Tasmanian Acts seem to share a common source. Thesame is so with the New South Wales and Victorian Acts, while theQueensland Act is most obviously based on now discarded Britishlegislation. Uniform legislation, it is suggested, should now be the goal.l'he advantages in this to parties, candidates and supporters, as wellas to the electoral authorities, are self evident. But even short of this,steps should be taken to prune the various acts of offences which haveno place in modern campaigns. Equally the sanctions for offencesshould be reconsidered. At the moment it cannot be said that there is


any general, let alone rational, basis for many of the penal provisionsand sanctions of the State and Commonwealth Acts.

(4) The Australian rules of electoral agency and the limitedgrounds available for unseating successful candidates relieve candidatesof much of the responsibility they should bear for the campaignconducted on their behalf. Unlike in the United Kingdom, the unseating provisions do not serve to exact strict compliance with electorallaw. Indeed, as has been seen, Australian law provides positive incentives to a candidate to keep himself aloof from the more mundane andday to day aspects of the campaign being conducted for him. Providedhe does not play falsely, he yet may wrongly win. One can only suggestthat, as with British candidates, a State or Federal candidate shouldbe obliged to answer for all aspects of his campaign, to ensure that hissupporters honour the letter and ,spirit of the law-at the peril of hisseat. And the enlarging of the unseating power would have the notaltogether unfortunate consequence of bringing home to candidatesand supporters an appreciation of the role which electoral law issupposed to play in the conduct of campaigns!

(5) All Australian Acts have accepted the need to protect candidates from misleading and unfair advertising. But one may wonder atthe efficacy of the protection given if a candidate who suffers fromsuch advertising is not afforded the legal means to restrain itscontinuation or repetition. At the moment Victoria alone gives a widepower to obtain an injunction in this context.56 This deficiency in theActs of the other Australian jurisdictions needs remedying.

(6) Controls of electoral expenditure, in one form or another, area characteristic of the electoral laws of many western countries. Butthere would seem to be few advocates for such controls in the Parliaments of Australia-and this notwithstanding (a) the criticisms thatare voiced on occasion of the large sums expended on behalf ofcandidates particularly in marginal seats and in by-elections, and (b)the suspicions which can be, and sometimes are, aroused as to thesources of some electoral financing, and as to the expectations of somecampaign contributors. The arguments in favour of controlling atleast the expenditure of candidates and their supporters have beentraversed in this article. As has been seen, they are premised in part onthe view that with the growth in size of modern el~ctorates, themovement of money in campaigns is no longer from candidates andtheir supporters to electors, but rather from electors and interestedgroups to parties and candidates. In this there is seen a breedingground for a more subtle form of malpractice-the possible obtainingof influence over, or compromising of, a candidate through financial

56 Vic.: s. 263.

226 Federal Law Review [VOLUME- 8

ties and support. Secondly, expenditure control aims at placing areasonable practical limit upon the resort which candidates can haveto one of the most potent sources of influence-advertising. No lessso than in heydays of bribery and treating the policy of the law is stillaimed at ensuring that the success of a candidate does not dependupon the depth of his and his supporters' pockets.

The adoption or enforcement of expenditure controls in Australiawill doubtless be said to raise issues-real or imagined-going farbeyond the question whether or not the pure and free electoral idealis best served by controlling the movement of money in electoralcampaigns. But insofar as that ideal is concerned the arguments, it issuggested, are compellingly in favour of controls.

(7) If the expenses of a candidate are to be restricted to a statutorylimit that limit must itself be a reasonable one. An unrealistic limitsimply invites evasion as is presently the practice under the Commonwealth Act. Furthermore, any limit set should be subject to periodicreview for what is realistic today may not be so tomorrow. Once set,the limit should be enforced rigorously and, it is suggested, the mosteffective method for ensuring compliance with it is to make failure todo so not only a statutory offence, but also a ground for the automaticunseating of a successful candidate-as is the case in the UnitedKingdom.

(8) Where ~xpenses are to be controlled consideration should begiven to the question whether or not all the financial aspects of acandidate's campaign should be channelled through one statutorilyrecognised and accountable individual-the election agent. The objectof the election agent device is, perhaps, most simply expressed in theaphorism "Put all your eggs in one basket and watch that basket".Though a creature of British and Canadian electoral law, no Australianjurisdiction has as yet adopted the election agent as an integral partof the regulation of election campaigns.

(9) Both the British experience before 1918 and current Victorianpractice show that little purpose is served in controlling a candidate'sexpenses if at the same time his supporters are allowed to spendunchecked in promoting his interests. The obvious model for controlling supporters is section 63 of the United Kingdom Act, a provisionwhich, as has been seen, requires supporters to obtain the candidate'selection agent's consent to any proposed expenditure. If that consentis given, the sum expended is then deducted from the amount whichthe candidate himself can spend. If consent is refused but the expenseis incurred nonetheless, the supporters commit a statutory offence.

(10) A central feature of expenditure control legislation is that allthe finan~ial aspects of a candidate's campaign should be given publicairing through the publication of each candidate's return of electoral


expenses. In his return a candidate should be obliged to disclose notonly the persons etc. to whom he makes disbursements on account ofelectoral expenses, but also the persons etc. from whom he hasreceived contributions to his campaign fund. This latter-and morecontentious-form of disclosure has been adopted, for example, in theUnited Kingdom, United States, Canada and New Zealand.57 Bothforms of disclosure serve the very obvious purposes of exposing topublic view any possible financial ties and commitments which a candi-'date may have subjected himself to in the course of conducting hiscampaign, and of protecting c~andidates from the discrediting effectsof innuendo and suspicion as to the sources of his financial support.

57 See in the U.K.: R.P.A., s. 69(3); for a lengthy analysis of the U.S. laws see(1975) 88 Harvard Law Review 1114; for Canada: see Elections Act 1970, R.S.C.Ch. 14; SSe 62,63; for N.Z-.:-see Electoral Act 1956, s; 137.


SCHEDULE l

OFFENCE U.K.*2 C'WLTHt3 QLDt4 N.S.W.tS VIC.t6 ' S.A.t7 W.A.t8 TAS.t9

Code: s.233;Bribery s.99 SSe 156, 157 s. 103 s.147 SSe 241-243 s. 146 s. 181 , s.146

2OO/1yr 4oo/1yr 4oo/1yr 500/6mths at large 800/1yr 400/1yr 4oo/1yr

Treating s.100 "Bribery" s.101 s.149 SSe 244-245A"Bribery" "Bribery" "Bribery"200/1yr 400/1yr 500/6mths at large

Undue influence s.101 s.158 s.102 s.151 s.246 s.148 s.183 s.147200/1yr 400/1yr 400/1yr 500/6mths at large 8oo/1yr 400/1yr 4oo/1yr

Personation s.47 s.170 s.99 s.112 s.252 s.154 s.190 s.1502yrs 2yrs 2yrs 6mths at large 2yrs 2yrs 1yr

Candidates s.63 s.161 s.257 s.187 s.149electoral expenses 2oo/1yr 2oo/6mths 400/6rnths 2oo/6mths 200/6mths

Improper accounting =s.=7.-:0~_----",.s....".... ..".....16':""""1:----::-- s-:-.2=-5':""""9:----:-- s:-.:-::1~8__=_7____::___=s_=_. :-14:-::9:__-:--for electoral expenses 2oo/1yr 2oo/6mths 4oo/6mths 200/6mths 2oo/6mths

Non declaration s.63 s.152of expenses bynon candidates 100 100

Expenditure on behalf ~. 63 SSe 148, 170 s.152 s.158 s.199 s.138of candidates 200/1yr 100 100 80 100 200/6mths

Authorising electoral s.161 B.A.: s. 91 s. 151E s.261A s.151 s.187 s.154advertisements 2oo/6mths 100 500/6mths 400/6mths 4oo/6mths 200/6mths 200/6mths

Printing electoral Code:s.95 s.161 s.106 s.151E s.261A s.187 s.154advertisements100 200/6mths 200 500/6mths 4oo/6mths 200/6mths 200/6mths

Untruths in electoral Code:~. 91 s.161 s.105 s. ISlA s.261A s.148 s.183 s.154advertisements100 2oo/6rnths 4oo/1yr 5OO/6mths 4oo/6mths 800/1yr 4oo/1yr 2oo/6mths

Misleading s.81 s.161 s. ISlA s.261A s.154vote cards 100 2oo/6mths 5OO/6mths 400/6mths 2oo/6mths

Prohibited posters s.I64B s.151B s.261A s.155Bdrawings 200 250 400

Obstructing s.I64BAremoval of same 200

Unheaded newspaper s.163 s.267 s.154advertisements 100 100 200/6mths

Authorising electoral s.I64A s.267 s.154Bbroadcasts 100 100 100

Improper use s.247 s.192Aof loudspeakers 100 100

Prohibited s.171 B.A.: s.76 s.193 s.154 s.192 s.157Canvassing SO 40 50 2oo/3mths 100 SO

Canvassing by s.151 s.183candidates on poll day 800/lyr 4oo/1yr

Candidates at electoral s.151 s.183meeting on poll day 800/1yr 400/1yr


SCHEDULE1

JFFENCE U.K. *2 C'WLTHt3QLDt4 N.S.W.tS VIC.t6 S.A.t7 W.A.t8 TAS.t9

Defamation Code:)f candidates s. 181 s.105 s.262 s.148 s.183

200/6mths 400/1yr 400/6mths 800/1yr 400/1yr

:laiming association s.181A s.-155A s.154Nith candidates loo/3mths 400 200/6mths

:andidates' gifts s.150 s.243 s.189 s.146.0 associations 10 at large 100 100

[nterference etc. s.53 s.109 s.53 s.90 s.99 s.145)y scrutineers 6mths 10 25 20 100/3mths

~adges in boothss.171A s.77 s.247 s.190 s.15750 40 100 50 50

=<'raudulent destruction s.170 s.154 s.190 s.153)f ballot paper 2yrs 2yrs 2yrs 6mths

Code:~tuffing ballot box s.170 s.111 s.177 s.252 s.154 s.19O s.153

6mths 7yrs 1yr at large 6mths 6mths 6mths

~raudulent1ytaking s.170 s.110 s.154 s.190 s.153~allot paper from

6mths 3yrs 6mths 6mths 6mths~ooth

aking ballot paperCode:

s.170 s.110 s. 111 s.192 s.153rom booth

100 3yrs 50 100 6mths

Forging and uttering s.170 s.176F s.137 s.154 s.190 s.150llallot paper :yrs 2yrs 2yrs 2yrs 2yrs lyr

ss.170,s.157179, 180 s.108 s. 111 s.192 s.154 s.19O

~isconduct in booth 1oo/lmthor 3yrs 50 100 40/1mth 1oo/lmth 20/1mth2oo/2mths

upplying papers s.170 s.154 s.19O s.153vithout authority 6mths 6mths 6mths 6mths

nterference with s.170 s.154 s.190 s.153apers or boxes 6mths 6mths 6mths 6mths

Code:~agering on election s.170 s.l00 s.112 s.252 s.154 s.190 s.150

100!3mths 2yrs 6mths at large 2oo/3mths 1yr 1yr

Wilfully defacing s.170 s.154 s.19O s.159 .,

fticial notices 4 8 4 20

alse statementsCode:

s.151s.170 s.113 s.112 s.252 s.154 s.190nder Act 2yrs 7yrs 6rnths at large 2yrs 1yr l00/3rnihs

s.108 s.113 s.157bstructing elector 3yrs 50 40/2mths

"

arrying s.251ffensive weapons

~

40

tisorderly conduct at s.177 B.A.: s. 90 s. 176B -plitical meetings 10/1mth 20 50/1mth

230 Federal Law Review

SCHEDULE l

[VOLUME 8

OFFENCE U.K.*2 C'WLTHt3QLDt4 N.S.W.t5 VIC.t6 S.A.t7 W.A.t8 TAS.t9

Refusing s. 175 s.157 s.196 s.159employees leave 10 hO 100 20

Inducing application s.87A s.114A s.219 s.74 s.159for postal vote 100/1mth 100/lmth 2oo/3mths 200/1mth 50/1mth

Influencing SSe 93, 95 s.114I,K s.95 s.145postal voter 200/6mths 250/3mths 2oo/3mths 1oo/3mths

No candidate as s.71,authorised witness SSe 91B, 170Reg. 51 s.114B s.238 s.80 s.94 s~_. 79, 145

100 20 80 100 100/3mths

Influencing voterduring electoralvisit~ti0l!

Licensed premises ascomJ!1ittee rooms

Candidate etc. atmeetings atlicensed prelnises

Canvassing etc.on polling day

Illegal employmentof canvassers etc.

s.96100

s.149200

s.72

200/6mths

Code: s. 106200

s.187

200/6mths

s.15440/2mths

SSe 138, 149200/6mths

* Fines in this column are in £ Sterling.t Fines in -this column are in $ Australian~1 As regards each offence, the relevant section (if any) in each jurisdiction is specified. The penalty for

offence is indicated by first specifying the maximum monetary penalty, followed by the maximum termimprisonment.

2 References in this column are to the Representation of the People Act 1949 (U.K.).3 References in this column are to the Commonwealth Electoral Act 1918 (Cth).4 References in this column, where suffixed by "Code", are to the Queensland Criminal Code;

abbreviation "E.A." occurs, references are to the Elections Act 1915 (Qld).5 Reference-s in this eolumn are to the Parliamentary Electorates and Elections Act 1912 (N.S.W.).6 References in this column are to the Constitution Act Amendment Act 1958 (Vic.).7 References in this column are to the Electoral Act 1929 (S.A.).8 References in this column are to the Electoral Act 1907 (W.A.).9"- References iJr this- column are to the Electoral Act 1907 (Tas.).

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