Division 9ADivision 9A Provisions relating to activities during regulated periods
(1) In this Division:display a poster or electoral material includes exhibit or post up the poster or electoral material; and publicly display means display, as so defined, within or within view of a public place.
electoral material means a how-to-vote card, poster or advertisement containing electoral matter, or anything else containing electoral matter.
electoral matter means:
(a) any matter that is intended or calculated or likely to affect or is capable of affecting the result of any election held or to be held or that is intended or calculated or likely to influence or is capable of influencing an elector in relation to the casting of his or her vote at any election, or(b) the name of a candidate at any election, the name of the party of any such candidate, the name or address of the committee rooms of any such candidate or party, the photograph of any such candidate, and any drawing or printed matter that purports to depict any such candidate or to be a likeness or representation of any such candidate.how-to-vote card means any card, handbill, pamphlet or notice having any voting directions within it, whether or not it contains:
(a) any representation or partial representation of a ballot-paper or portion of a ballot-paper, or(b) any representation or partial representation apparently intended to represent a ballot-paper or portion of a ballot-paper.joint owner of premises or property means one of two or more persons who own the premises or property jointly, whether as joint tenants or tenants in common or otherwise.
poster means any electoral matter printed, drawn or depicted on any material whatsoever and where any electoral matter is printed, drawn or depicted in sections, those sections, both severally and collectively, are to be treated as a poster.
recognised group of candidates means a group of candidates who have claimed under section 308A of the Act to have their names included in a group on the ballot-papers.
regulated period for an election means:
(a) the period starting with the roll closing date and ending at 6 pm on election day, and(b) all days to which polling for the election is adjourned.street address does not include a post office box number or a DX box number.
voting directions means directions or suggestions (whether express or implied) in relation to the casting of votes.
(2) If premises or other property referred to in a provision of Subdivision 2 are subject to a lease for a term of 6 months or more, a reference in that provision to the owner or a joint owner of the premises or property is to be read as a reference to the lessee or a joint lessee of the premises or property.
Subdivision 2 Non-complying electoral material
356B Non-complying electoral material
For the purposes of this Division, electoral material contravenes this Subdivision if:(a) the material contains voting directions intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his or her vote, or(b) the material contains an untrue or incorrect statement intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his or her vote, or(c) without limiting paragraph (b), the material contains information that is incorrect or misleading about whether a person is or is not:(i) a candidate for the election, or(ii) a candidate for a particular area or ward, or(iii) a member of a registered political party or recognised group of candidates, or(iv) endorsed by a registered political party, or(d) the material uses:(i) the name, an abbreviation or acronym of the name or a derivative of the name of a party respectively included in the Local Government Register of Political Parties (or a name or abbreviation resembling such a name, abbreviation, acronym or derivative) in a way that is intended or likely to mislead any elector, or(ii) the word “Independent” and the name or an abbreviation or acronym of the name or a derivative of the name of a party respectively included in that Register in a way that suggests or indicates an affiliation with that party (unless the name of the party in that Register includes the word “Independent”), or(e) in the case of material that contains voting directions—any of the directions are contrary to the requirements of the Act or this Regulation or are contrary to the directions or instructions contained in the relevant ballot-papers, including (for example) a direction:(i) to leave the ballot-paper blank, or(ii) to write or draw unauthorised matter on the ballot-paper, or(iii) to repeat or leave out a number when indicating preferences, or(f) the material could result in an elector casting an informal vote, or(g) the material contains a statement (express or implied) to the effect that voting is not compulsory, or(h) the material contains words that are or other matter that is obscene or offensive.
356C Non-complying electoral material—additional provisions regarding how-to-vote cards
(1) Application of clause
Without limiting clause 356B, electoral material consisting of or containing a how-to-vote card contravenes this Subdivision if the card does not comply with this clause.(2) Non-complying how-to-vote cards for registered political parties
A how-to-vote card containing voting directions as to how to vote for or in accordance with the recommendations of a registered political party does not comply with this clause if:(a) the party has endorsed no candidate for the election, or(b) the voting directions give a preference to a candidate not endorsed by it without first giving higher preferences to all candidates endorsed by it.(3) Non-complying how-to-vote cards for recognised groups of candidates
A how-to-vote card containing voting directions as to how to vote for or in accordance with the recommendations of a recognised group of candidates does not comply with this clause if the voting directions give a preference to a candidate who is not a member of the group without first giving higher preferences to all candidates who are members of the group.(4) Non-complying how-to-vote cards for individual candidates
A how-to-vote card containing voting directions as to how to vote for or in accordance with the recommendations of a particular candidate does not comply with this clause if:(a) whether or not the candidate is a member of a recognised group of candidates—the voting directions do not contain a voting direction for the candidate to receive the first preference, or(b) where the candidate is a member of a recognised group of candidates—the voting directions give a preference to a candidate who is not a member of the group without first giving higher preferences to all candidates who are members of the group.(5) Non-complying how-to-vote cards using group voting squares—voting above and below the line
A how-to-vote card containing voting directions as to how to vote for or in accordance with the recommendations of a recognised group of candidates by using a group voting square does not comply with this clause if the voting directions also give preferences (“below the line”) for:(a) some only of the individual members of the group, or(b) individual members of the group in a different order from that appearing in the list of candidates in the group on the ballot-paper.Note. Subclause (5) ensures that in these circumstances the material must be internally consistent, since voting by using a group voting square implies voting for all the candidates in the group and in the order in which their names appear.(6) Non-complying how-to-vote cards without group voting squares—no indication of requirement to vote for at least half the candidates
A how-to-vote card containing voting directions as to how to vote without using group voting squares and that do not give preferences for at least half the number of candidates to be elected does not comply with this clause if the voting directions do not contain a statement as to how many other preferences must be marked on the ballot-paper.(7) Non-complying how-to-vote cards relating to two or more areas
A how-to-vote card containing voting directions does not comply with this clause if the voting directions relate to two or more areas.
Subdivision 3 Offences applicable during regulated period
356D Printing, publishing and distributing non-complying electoral material
A person must not, during the regulated period, print, publish or distribute electoral material that contravenes Subdivision 2.Maximum penalty: 10 penalty units.
(1) A person must not, during the regulated period, publicly display or permit or cause to be publicly displayed, a poster containing or consisting of electoral material that contravenes Subdivision 2.Maximum penalty: 10 penalty units.
(2) A person must not, during the regulated period, display or permit or cause to be displayed a poster:(a) on or within any premises occupied or used by, or under the control or management of:(i) the Crown or a NSW Government agency, or(ii) any council or county council, or(b) on or within any other premises, unless the person:(i) was the owner or a joint owner of the premises, or(ii) performed the act concerned with the permission in writing of the owner or a joint owner of the premises.Maximum penalty: 2.5 penalty units.
356F Writing, drawing or depicting electoral matter
(1) A person must not, during the regulated period, write, draw or depict any electoral matter directly on any property, being a roadway, footpath, building, vehicle, vessel, hoarding or place (whether it is or is not a public place and whether on land or water).Maximum penalty: 3 penalty units.
(2) A person is not guilty of an offence under this clause if the person:(a) was the owner or joint owner of the property, or(b) performed the act concerned with the permission in writing of the owner or a joint owner of the property.(3) Without limiting subclause (2), a person is not guilty of an offence under this clause involving a vehicle, vessel or hoarding if the person:(a) was the owner or joint owner of the premises on which the vehicle, vessel or hoarding was situated, or(b) performed the act concerned with the permission in writing of the owner or a joint owner of the premises.(4) Subclauses (2) and (3) do not apply to any premises or property occupied or used by, or under the control or management of:(a) the Crown or a NSW Government agency, or(b) any council or county council.
356G Name and address on electoral material
(1) A person must not, during the regulated period, print, publish, distribute or publicly display electoral material (other than the announcement in a newspaper of the holding of a meeting), without legibly showing on the material:(a) the name and address of the person on whose instructions the material was printed, and(b) the name of the printer and the street address of the premises at which it was printed.Maximum penalty: 5 penalty units.
(2) If a newspaper contains electoral material and the name of the printer of the newspaper and the street address of the premises at which it was printed appear on the newspaper in accordance with any Act, subclause (1) does not require that name and address to be shown separately on the material itself.
356H Encouraging ticks or crosses on ballot-papers
A person must not, during the regulated period, print, publish, distribute or publicly display any electoral material that encourages any elector to place a tick or a cross in a square on a ballot-paper.Maximum penalty:
(a) in the case of corporation—50 penalty units, or(b) in any other case—10 penalty units.
(1) Defences
A person is not guilty of an offence for a breach of a provision of this Subdivision if it is established that:(a) the breach was not of a material nature, or(b) the breach was not intended, or was not likely, to mislead an elector in or in relation to the casting of his or her vote, or(c) the person was not aware that the act or omission concerned was a breach of the provision when it occurred and took all reasonable steps to remedy the breach when the person became aware that it was or may have been such a breach.(2) Exceptions
Nothing in this Subdivision prohibits:(a) the display, writing, drawing or depicting of a sign on or at the office or committee room of a candidate or political party indicating only that the office or room is the office or committee room of the candidate or party, and specifying the name of the candidate, or the names of the candidates, or the name of the party concerned, or(b) the projection by means of any cinematograph or other similar apparatus of any electoral matter on to any screen in any theatre or public hall the subject of a development consent in force under the Environmental Planning and Assessment Act 1979 in relation to its use as a place of public entertainment, or(c) the display, writing, drawing or depicting of any poster within a hall or room that is being or is about to be used for a meeting held by or on behalf of a candidate in connection with an election, or(d) the display of any poster on or at the office of a councillor.
Subdivision 4 Additional offences applicable on pre-poll voting days
356J Display of posters on pre-poll voting days
(1) Posters at pre-poll voting office
A person must not display, or cause to be displayed, any poster of any size:(a) within a pre-poll voting office, or(b) on the exterior of a building used as a pre-poll voting office,on any day on which pre-poll voting is conducted at the pre-poll voting office.Maximum penalty: 5 penalty units.
(2) Application of this clause to grounds of enclosure
If:(a) a building used as a pre-poll voting office is situated in grounds within an enclosure, and(b) the appointment by the Electoral Commission of the pre-poll voting office does not indicate whether or not the grounds are part of the pre-poll voting office,the grounds are not, but the building is, taken to be part of the pre-poll voting office for the purposes of subclause (1), unless a notice to the contrary is displayed under clause 356U. If such a notice is displayed, the grounds are taken to be part of the pre-poll voting office for the purposes of subclause (1).
356K Canvassing on pre-poll voting days
(1) Canvassing in pre-poll voting office
A person must not:(a) canvass for votes, or(b) solicit the vote of any elector, or(c) induce any elector not to vote for any particular candidate or group of candidates, or(d) induce any elector not to vote at the election,within a pre-poll voting office on any day on which pre-poll voting is conducted at the pre-poll voting office.Maximum penalty: 5 penalty units.
(2) Amplified canvassing audible in pre-poll voting office
A person must not contravene this subclause. This subclause is contravened if on any day on which pre-poll voting is conducted at a pre-poll voting office each of the following paragraphs apply:(a) the person engages in:(i) canvassing for votes, or(ii) soliciting the vote of an elector, or(iii) inducing an elector not to vote for a particular candidate or group of candidates, or(iv) inducing an elector not to vote at the election, and(b) the person engages, in any public or private place, in that activity any distance away from the pre-poll voting office, and(c) the person uses any of the following to engage in that activity:(i) a loud speaker,(ii) a public address system,(iii) an amplifier (whether fixed or mobile),(iv) a broadcasting van,(v) a sound system,(vi) radio equipment,(vii) any other equipment or device for broadcasting, and(d) that activity is audible within the pre-poll voting office.Maximum penalty: 5 penalty units.
(3) Canvassing includes distributing electoral material
Without limiting the generality of subclause (1), a reference to canvassing for votes includes a reference to distributing electoral material, whether or not the material is registered in accordance with Subdivision 6.(4) Application of this clause to grounds of enclosure
If:(a) a building used as a pre-poll voting office is situated in grounds within an enclosure, and(b) the appointment by the Electoral Commission of the pre-poll voting office does not indicate whether or not the grounds are part of the pre-poll voting office,the grounds are not, but the building is, taken to be part of the pre-poll voting office for the purposes of this clause, unless a notice to the contrary is displayed under clause 356U. If such a notice is displayed, the grounds are taken to be part of the pre-poll voting office for the purposes of this clause.
Subdivision 5 Additional offences applicable on election days
356L Extended operation of this Subdivision
(1) In the application of this Subdivision to electoral material, electoral matter is, without limiting the definition of that term in clause 356A, taken to include any matter consisting of an express or implicit reference to or comment on:(a) an election, or(b) any council or any previous council, or(c) any councillor or previous councillor, or(d) the Government, the Opposition, a previous Government or a previous Opposition, of this or any other State or Territory or of the Commonwealth, or(e) a member or former member of the Parliament of this or any other State or Territory or of the Commonwealth, or(f) a political party, a branch or division of a political party or a candidate in an election, or(g) an issue submitted to, or otherwise before, the electors in connection with an election.(2) References in this Subdivision to election day include references to all days to which polling is adjourned.
356M Distribution of electoral material on election days
(1) A person must not, in a public place, distribute any electoral material on election day unless the material has been registered under Subdivision 6 for the election.Maximum penalty: 10 penalty units.
(2) For the purposes of this clause and without limiting its operation, material is taken to be distributed if it is left in such a position and in such circumstances as to indicate that it is intended to be available for collection by members of the public who are in a public place.(3) This clause does not apply to the handing out, distribution, sale or otherwise making available of a newspaper by or on behalf of a newsagent, newspaper seller or distributor if the handing out, distribution, sale or making available is in the course of the newsagent’s, newspaper seller’s or distributor’s employment or business.
356N Display of posters on election days
(1) Posters at polling place
A person must not, on election day, display or cause to be displayed any poster of any size:(a) within a polling place, or(b) within 6 metres of an entrance to a polling place, or(c) on the exterior of a building used as a polling place.Maximum penalty: 5 penalty units.
(2) Posters in grounds of enclosure of polling place
Without limiting subclause (1), a person must not, on election day, display or cause to be displayed any poster exceeding 8,000 square centimetres in area within the grounds of an enclosure in which a building used for polling is situated.Maximum penalty: 3 penalty units.
(3) Posters on boundary of enclosure of polling place
A person must not, on election day, display or cause to be displayed any poster exceeding 8,000 square centimetres in area on the outer wall, fence or other boundary of the grounds of an enclosure in which a building used for polling is situated.Maximum penalty: 3 penalty units.
(4) Application of this clause to grounds of enclosure
If:(a) a building used as a polling place is situated in grounds within an enclosure, and(b) the appointment by the Electoral Commission of the polling place does not indicate whether or not the grounds are part of the polling place,the grounds are not, but the building is, taken to be part of the polling place for the purposes of subclause (1), unless a notice to the contrary is displayed under clause 356U. If such a notice is displayed, the grounds are taken to be part of the polling place for the purposes of subclause (1), and subclause (2) does not apply.
356O Canvassing on election days
(1) Canvassing in or near polling place
A person must not:(a) canvass for votes, or(b) solicit the vote of any elector, or(c) induce any elector not to vote for any particular candidate, or(d) induce any elector not to vote at the election,on election day:(e) within a polling place, or(f) within 6 metres of an entrance to a polling place.Maximum penalty: 5 penalty units.
(2) Amplified canvassing audible in or near polling place
A person must not contravene this subclause. This subclause is contravened if on election day each of the following paragraphs apply:(a) the person engages in:(i) canvassing for votes, or(ii) soliciting the vote of an elector, or(iii) inducing an elector not to vote for a particular candidate, or(iv) inducing an elector not to vote at the election, and(b) the person engages, in any public or private place, in that activity 6 metres or more from an entrance to a polling place, and(c) the person uses any of the following to engage in that activity:(i) a loud speaker,(ii) a public address system,(iii) an amplifier (whether fixed or mobile),(iv) a broadcasting van,(v) a sound system,(vi) radio equipment,(vii) any other equipment or device for broadcasting, and(d) that activity is audible:(i) within the polling place, or(ii) within 6 metres of an entrance to the polling place.Maximum penalty: 5 penalty units.
(3) Canvassing includes distributing electoral material
Without limiting the generality of subclause (1), a reference to canvassing for votes includes a reference to distributing electoral material, whether or not the material is registered in accordance with Subdivision 6.(4) Application of this clause to grounds of enclosure
If:(a) a building used as a polling place is situated in grounds within an enclosure, and(b) the appointment by the Electoral Commission of the polling place does not indicate whether or not the grounds are part of the polling place,the grounds are not, but the building is, taken to be part of the polling place for the purposes of this clause, unless a notice to the contrary is displayed under clause 356U. If such a notice is displayed, the grounds are taken to be part of the polling place for the purposes of this clause.
Subdivision 6 Registration of electoral material
356P Application for registration of electoral material
(1) Application for registration may be made
For the purposes of clause 356M, an application may be made to the Electoral Commission (in a form approved by the Commission) for the registration of electoral material for a particular area for any one or more of the following:(a) a particular election of one or more councillors,(b) a particular election of mayor by electors,(c) a particular constitutional referendum, or two or more particular constitutional referendums being held at the same time,(d) a particular council poll, or two or more particular council polls being held at the same time.(2) Applications by or on behalf of parties, groups or candidates
An application may be made:(a) by the registered officer of a registered political party—on behalf of the party, or(b) by the first candidate listed in a recognised group of candidates—on behalf of the group, or(c) by a candidate—on his or her own behalf.(3) Applications by or on behalf of others
An application may be made:(a) by an officer or representative of an incorporated or unincorporated body (other than a registered political party or a recognised group of candidates) who is not a candidate—on behalf of the body, or(b) by an individual who is not a candidate—on his or her own behalf.(4) Timing of application
An application may be made only during the period starting with nomination day and ending at 5 pm on the Friday that is 8 days before election day.(5) Draft or sample to be provided
An application must contain a draft or sample of the electoral material.(6) Alteration or replacement of draft or sample
The Electoral Commission may allow the draft or sample to be altered or replaced during the period specified in subclause (4) before agreeing to registration.(7) Preliminary advice
A person authorised by subclause (2) or (3) to apply for registration of electoral material may, during the period specified in subclause (4), apply to the Electoral Commission (in a form approved by the Commission) for preliminary advice as to whether particular electoral material may be registered.(8) The Electoral Commission may provide that advice, even if the material is incomplete, but the application for registration of the material must nevertheless be made during that period.(9) Manner of application
An application under this clause must be signed by the applicant and may be delivered or sent (by post or otherwise) or may be transmitted by facsimile or email.(10) An application is not validly transmitted by email unless:(a) an image of the completed application signed by the applicant is included in or attached to the email, and(b) that image includes an image of the actual signature as appearing on the application.
356Q Consideration of application for registration
(1) Complying material must be registered
The Electoral Commission must register the electoral material if satisfied that registration is not prohibited by this Subdivision.(2) Refusal for non-complying application
However, the Electoral Commission may refuse to register the electoral material if the application for registration was not made in accordance with this Subdivision.(3) When material must be refused registration
The Electoral Commission must not register the electoral material if it appears to the Electoral Commission that:(a) the material contravenes Subdivision 2, or(b) the material is, or contains a section, in a language other than English and the application for registration was not accompanied by:(i) an accurate translation into English of the material or section, and(ii) a declaration that the translation is accurate, or(c) the material does not include in legible characters:(i) the name and address of the person on whose instructions the material was printed, and(ii) the name of the printer and the street address at which is was printed, or(d) in the case of an application for registration purporting to be made on behalf of an entity referred to in clause 356P (2) or (3)—the application was not made by a person authorised by the relevant subclause to make the application, or(e) in the case of an application not purporting to be made on behalf of an entity referred to in clause 356P (2) or (3) for the registration of material that contains voting directions as to how to vote for or in accordance with the recommendations of such an entity—the application was not made by a person authorised by the relevant subclause to make an application on behalf of the entity, or(f) in the case of an application for the registration of material that contains any representation or indication (whether express or implied) that any candidate:(i) is a member of, or(ii) pursues or supports any or all of the objects or platform (whether with or without modification) of, or(iii) is affiliated in some way (whether officially or unofficially) with,a particular registered political party or recognised group of candidates—the application was not made by or with the consent of the registered officer of the party or the first candidate listed in the group.(4) Offence for false statement in declaration about translated material
A person must not make a declaration for the purposes of subclause (3) (b) knowing that the translation of the material or section is inaccurate in a material respect.Maximum penalty: 10 penalty units.
(5) Inquiries as to authenticity of application or consent
The Electoral Commission may make such inquiries as the Commission thinks fit to confirm the authenticity of:(a) an application, or(b) any consent referred to in subclause (3) (f).
356R Registration of electoral material
(1) Certificate of registration
Registration of the electoral material is effected by the issue of a certificate of registration (in a form approved by the Electoral Commission) in respect of a draft or sample of the electoral material.(2) Details to be included in certificate
The certificate of registration must specify:(a) the elections, constitutional referendums and council polls, and(b) the area,for which the electoral material is registered.(3) Registration may be conditional or unconditional
Registration may be unconditional or subject to conditions specified in the certificate of registration.(4) Evidence of registration
A certificate signed by the Electoral Commissioner or by a person authorised by the Electoral Commission and certifying that specified material was or was not registered:(a) on a specified day or during a specified period, or(b) for a particular election, constitutional referendum or council poll, or(c) for a particular area,is admissible in proceedings for an offence under clause 356G and is prima facie evidence of the matters certified.(5) Immaterial differences not to affect registration
Electoral material is to be taken to be registered in accordance with this clause even though the material contains some differences from the draft or sample in respect of which the certificate of registration was issued, so long as the material is substantially the same as the draft or sample.(6) Registration not a defence for certain offences
Registration of electoral material is not a defence to a prosecution for an offence under Subdivision 3 or 4.(7) Copy of material and certificate to be available for inspection
A copy of electoral material registered under this clause and referring to an election, constitutional referendum or council poll for an area, and the relevant certificate of registration, must be available for inspection:(a) at the office of the returning officer for the area, during the hours of polling on election day and on all days to which the polling is adjourned, and(b) at such other places (if any), and during such of those hours, as the Electoral Commission determines,at the request of any person enrolled for the area or of any scrutineer.
356S Revocation of registration or imposition of condition on registration
(1) If the Electoral Commission is satisfied that electoral material was erroneously registered, the Commission may:(a) revoke the registration of the material, or(b) attach a condition to the registration of the material, requiring the material to be altered in a specified way, whether by way of omitting matter or inserting matter or both, or otherwise.(2) The revocation or condition takes effect from the time the revocation or condition is communicated to the candidates concerned or their representatives, and accordingly:(a) electoral material whose registration has been revoked ceases to be registered from that time, and(b) electoral material to whose registration a condition has been attached is from that time taken to be registered only if the condition is complied with.
356T Confiscation of posters and other electoral material
(1) Confiscation by election officials
The returning officer or any polling place manager, or any other election official authorised by the Electoral Commission, may remove and confiscate, or cause to be removed and confiscated:(a) any poster displayed in contravention of Subdivision 4 or 5, or(b) any electoral material that is apparently available for distribution in contravention of Subdivision 5.(2) Confiscation by police
Any police officer may remove and confiscate, or cause to be removed and confiscated:(a) any poster displayed in contravention of Subdivision 3, 4 or 5, or(b) any electoral material that is apparently available for distribution in contravention of Subdivision 5.(3) Use of force
A police officer may use reasonable force for the purposes of this clause. This clause does not authorise any other person to use force.(4) Confiscated material to be destroyed
Confiscated electoral material must be destroyed without undue delay, but destruction may be delayed if the material is or may reasonably be required for evidentiary purposes.
356U Notice applying provisions to grounds of polling place
(1) This clause applies for the purposes of clauses 356J, 356K, 356N or 356O, in a case where:(a) a building used for polling is situated in grounds within an enclosure, and(b) the appointment by the Electoral Commission of the pre-poll voting office or polling place concerned does not indicate whether or not the grounds are part of the pre-poll voting office or polling place.(2) The returning officer may, with the concurrence of the Electoral Commission, cause a notice to be displayed, during the hours of polling, at each entry to the grounds stating that those grounds are treated as part of the pre-poll voting office or polling place.Note. Clauses 356J (2), 356K (4), 356N (4) and 356O (4) state the effect of displaying such a notice.
Nothing in this Division applies to the printing, publishing, distribution or display of official notices.
A person is not liable to be convicted of both an offence under Subdivision 3 and an offence under Subdivision 4 or 5 if the offences arose out of the same circumstances.