Electoral offences and complaints - local government elections

Does electoral material need to be authorised?

Yes. Section 4.87 of the Local Government Act requires that electoral material (including material published on the internet) must state the name and address of the person who authorised the material and the name and address of the person who published the material.

The address cannot be a post office box and must be a physical address. If the electoral material is published in a newspaper, there is no requirement for the publishers’ details.

Authorisation requirements do not apply to promotional material such as car stickers, clothing, lapel buttons, pens, pencils, balloons, or similar promotional material.

On social media platforms, electoral material requires authorisation.  However, individual posts commenting on the original publication do not require authorisation.

The Electoral Commission or Returning Officers do not approve electoral publications or provide legal advice. If a candidate is unsure about their electoral material complying with the law, they should seek their own independent legal advice.

For candidates and those interested in publishing electoral material, remember to authorise the material. This will avoid the expense of paying money for the material only to be informed you cannot use it due to lack of authorisation. There is also a potential fine of $2000 for unauthorised electoral material.

What are misleading or deceptive electoral statements?

Under section 4.88 of the Local Government Act it is an offence to print, publish or distribute deceptive electoral material.

The definition of deceptive material is any matter that is likely to mislead an elector when they cast a vote.

The term misleading has been narrowly defined by the courts as relating to when an elector has to cast a vote. For example, elector material that suggests marking a ballot paper contrary to the prescribed method would be misleading an elector when they cast a vote. There is a potential $5000 fine or imprisonment for one year if the court determines electoral material to be misleading or deceptive.

However, electoral material putting forward a perspective on an issue that can be freely contested by candidates and the public is not misleading an elector when they cast a vote.

For example, if candidate A alleges candidate B did not vote in support of a new council building, this is something that any community member can check by consulting council minutes or by asking candidate B personally. Candidate B can also refute this statement in their own communications. It is part of the free exchange of views and opinions during any election. Remember, the Electoral Commission does not determine what is true or untrue in electoral material. It is the Commission’s role to ensure electoral material is authorised and complies with the law.

Can candidates handle ballot papers?

No. It is a serious offence under section 4.92 of the Local Government Act for a candidate or someone expressly authorised to act on the candidate’s behalf to handle postal packages. A candidate can receive a prison sentence of up to one year or a $5000 fine for handling ballot papers.

If a candidate thinks electors require assistance with voting, they should contact the Returning Officer.

What are the responsibilities of local councils and CEOs during local government election campaigns?

Quite often candidates and the community think that many of the matters listed below are the responsibility of the Electoral Commission or the Returning Officer, when in fact, they are the responsibility of the local government CEO.

  • Disclosure of gifts by candidates and donors and the maintenance of the gift register is the responsibility of the CEO.
  • The use of council resources during the election campaign is a matter for the CEO and council.
  • The maintenance of the Owner and Occupiers roll is the responsibility of the CEO.
  • The placement of electoral signage is a matter for the local council or the owner of the property. The Returning Officer’s responsibility is to ensure the electoral material is authorised.

What does the Court of Disputed Returns do?

A person who is dissatisfied with the result of an election or with the way in which an election was conducted may make an invalidity complaint.

An invalidity complaint is to be made to a Court of Disputed Returns, constituted by a magistrate, but can only be made within 28 days after notice is given of the result of the election, and must be a complaint that either:

  • An election is invalid.
  • Another person should be declared elected; or
  • The term of office of a councillor should be longer or shorter than the term determined by the Returning Officer.

However, the Electoral Commission does not provide legal advice to candidates and their supporters regarding court matters, rather they should seek their own legal advice regarding court matters.

How to make a complaint about an alleged electoral offence.

Complaints regarding alleged electoral offences can be made via the Commission’s webform and must be submitted through the online feedback form at the following link: www.elections.wa.gov.au/complaints

Remember, to attach evidence of the offence. The Electoral Commission does not act on hearsay. For the Commission to investigate an alleged breach of the law it requires evidence.