122Protection of the official mark

122 Protection of the official mark

(a) engage in conduct that makes an official mark on or in any paper; or

(b) have in his or her possession any paper bearing an official mark; or

(c) make use of or have in his or her possession an instrument capable of making on or in any paper an official mark.

(2) A person who engages in conduct that makes on or in a ballot‑paper, or any paper purporting to be a ballot‑paper, an official mark, is taken to have forged a ballot‑paper.

Note Forgery of ballot‑papers is dealt with by paragraph 118 (1) (f).

(3) All paper bearing an official mark, and all instruments capable of making on or in paper an official mark, made, used, or in the possession of any person without lawful authority (proof of which lies upon him or her):

(a) is to be forfeited to the Commonwealth; and

(b) may without warrant be seized by a member of the Australian Federal Police or a member of the police force or service of a State or Territory; and

(c) may be destroyed or dealt with as determined by the Electoral Commission.

(4) In a prosecution for an offence under subrule (1), it is a defence if the person proves that he or she acted with lawful authority.

Note The defendant bears a legal burden in relation to the defence in subrule (4) (see section 13.4 of the Criminal Code).

(5) In a prosecution for an offence constituted by conduct mentioned in subrule (2) it is a defence if the person proves that he or she acted with lawful authority.

Note The defendant bears a legal burden in relation to the defence in subrule (5) (see section 13.4 of the Criminal Code).

(6) In this rule:

official mark means an approved mark placed or made on or in an electoral paper, and includes a mark so nearly resembling an official mark as to be likely to deceive.