The electoral commissioner is considering whether unauthorised political signs claiming independent candidates are affiliated with the Greens may breach laws that ban misleading voters.
Tom Rogers said the Australian Electoral Commission is “actively” investigating the controversial signs, including slapping entities which may know more with “formal notices” to provide information about the “disappointing” unauthorised material.
On Friday independents in Warringah, Mackellar, Hughes and Hume reported their own posters had been ripped down and replaced with near-identical copies bearing Greens branding in what they said was a “coordinated” attack.
The AEC has already concluded the signs breach electoral laws which require political material to be authorised, which carry penalties of up to $26,640 for individuals or $132,200 for corporations.
It has referred the matter to the electoral integrity assurance taskforce for investigation and is encouraging anyone with information to come forward.
Asked if the signs could breach other laws, Rogers told Guardian Australia the AEC is “looking at other offences” including section 329 of the Electoral Act, which bans material that “is likely to mislead or deceive an elector in relation to the casting of a vote”.
The provision refers to misleading voters about the process of voting, but does not guarantee truth in political advertising generally. It may apply if the signs are deemed to indicate the independents are the endorsed candidates of the Greens, and therefore indicate a vote for the named candidate is a vote for the Greens.
Fines for breaching this section are lower – up to $22,200 for an individual and up to $111,000 for corporation – but it can be punishable by up to three years in prison.
“That is a really complex area of law – but we are examining that as well,” Rogers said.
“One of the few things that parties and candidates have to do is follow relatively simple authorisation rules … Citizens must know where information comes from. The fact it is unauthorised is concerning.”
Rogers said entities the AEC thinks might have information have been issued with “a formal notice”, an apparent reference to the commissioner’s information-gathering powers for investigating unauthorised material.
Asked if penalties need to increase to deter unauthorised material, Rogers replied it was “pretty fundamental to a high integrity election to know who is saying what”.
“Whatever can be done to deter people from behaving poorly I would endorse.”
Rogers noted the AEC had been inundated with complaints through social media about “damaged corflutes, [and] corflutes that have been pulled down”.
“Of course we decry that … But it’s not a power we have under the Electoral Act,” he said, explaining they were matters for the police.
Rogers said the AEC also has no responsibility for enforcing truth in political advertising, and is not seeking that power, but that was not to say another entity could not be entrusted with such a function.
Advance, a conservative political action group that has campaigned against Steggall and other climate-focused independents, has denied it was behind the fake corflutes.
“This is absolutely not Advance,” a spokesperson said. “All material produced by Advance is clearly authorised and strictly complies with AEC rules.”
The spokesperson said Advance had not received a notice from the AEC.
The Australian Electoral Commission has received 2m applications for postal votes, up from 1.5m in 2019.
Rogers said this means “more votes in envelopes” making it “more likely there will be unresolved contests on election night”, as ballots can arrive up to two weeks after election day.
Prepoll votes are also up, with 305,000 people voting on Monday, the first day of prepolling, up from 120,000 in 2019 – although the prepoll period is shorter in this election cycle.
