The Joint Standing Committee on Electoral Matters (JSCEM) was dissolved when parliament was prorogued for the 2010 federal election, and reappointed when the Forty-third Parliament commenced in September 2010.
On 23 November 2010, the Special Minister of State, the Hon Gary Gray AO, MP, asked the JSCEM to inquire into and report on all aspects of the 2010 federal election and matters related to the election.
On 11 May 2011, the parliament agreed (as stated in the House of Representatives Hansard of that date):
The AEC has lodged several submissions and appeared at a number of public hearings in relation to the first referral, and expects to make a submission in relation to the second referral.
Certain administrative decisions made by the AEC under the Electoral Act are subject to merits review under the Administrative Appeals Tribunal Act 1975.
Complaints about 'a matter of administration' relating to the functions of the AEC can be made to the Commonwealth Ombudsman under the Ombudsman Act 1976. Complaints about breaches of privacy rights may be lodged with the Federal Privacy Commissioner under the Privacy Act 1988. Complaints that the AEC has unlawfully discriminated against a person may be made to the Australian Human Rights Commission under the Human Rights and Equal Opportunity Commission Act 1986.
Several matters that were mentioned in the AEC's 2009–10 annual report were considered by the Administrative Appeals Tribunal (AAT) in 2010–11.
The application made by Jared Hyams seeking the review of a decision by the Australian Electoral Officer for Victoria to reject his claim for enrolment under s.101 of the Electoral Act involved the issue of what constitutes a signature. With the enactment of the amendments contained in the Electoral and Referendum (Modernisation and Other Measures) Act 2010, a transfer of enrolment could be acted on by the AEC without a signature provided that the claim included the date of birth of the elector and the elector's driver's licence number. As Mr Hyams's transfer of enrolment claim form included both his date of birth and his driver's licence number, the claim form was not required to be signed. The AAT decided on 5 October 2010 to dismiss Mr Hyams's application under s.42B of the AAT Act as being frivolous and vexatious.
Two applications involving decisions relating to party registration remain unresolved. The first application (AAT reference no. 2010/1457) was adjourned from 28 June 2011 to 30 September 2011. This application involves the review of the decision by the Commission to register the Communist Alliance as a registered political party under Part XI of the Electoral Act. The registration of a political party enables the party to appear under the registered name on the ballot papers and to receive election funding. Several objections were received, including one by the Community Alliance Party, which is a recognised political party under the laws of the Australian Capital Territory but is not registered under the Electoral Act.
The second application (AAT reference no. 2010/2416) was adjourned from 20 June 2011 to a date to be set by the AAT. This application involves the review of the decision by the Commission to accept the application to replace John Mulholland with Anthony Zegenhangen as the registered officer of the Democratic Labor Party (DLP) of Australia under the Electoral Act. The registered officer of a registered political party is the main point of contact for a range of matters under the Electoral Act. One of the significant rights that are given to the registered officer of a registered political party is the right to endorse candidates to appear on ballot papers for federal elections under sections 166, 169 and 210A of the Electoral Act.
The Commonwealth Ombudsman approached the AEC in relation to six matters during 2010–11. All the matters were finalised during 2010–11. No findings of administrative deficiency were recorded against the AEC.
The Privacy Commissioner did not approach the AEC in relation to any privacy complaints during 2010–11. Therefore, there were no complaints in 2010–11 that led to determinations being made by the Privacy Commissioner under s.52 of the Privacy Act 1988.
The AEC's 2009–10 annual report referred to the AEC having received notification of a complaint lodged with the Australian Human Rights Commission concerning the services and facilities that are provided under the Electoral Act to enable persons who are blind or have low vision to vote in federal elections.
The AEC responded to the complaint on 7 July 2010, and a successful mediation conference took place in December 2010. The AEC continues to work with other electoral authorities in Australia and to consult with peak bodies which represent people who are blind or have low vision, to develop cost-effective options to enable such voters to cast secret and independent votes at elections.
The AEC was notified of a further complaint having been lodged with the Australian Human Rights Commission about the choice of a polling place in Queensland. The complaint centres on the choice of a building where the front entrance contains 17 stairs and access by people with disability could only be gained via the rear of the building. This matter is listed for mediation in July 2011.
A number of previously reported matters involving the judicial review of AEC decisions under the Electoral Act are continuing, primarily in relation to the recovery of costs awarded to the AEC at the conclusion of the substantive hearings. Examples of this include the matters involving Albert Langer aka Arthur Dent (relating to the refusal to accept his enrolment under a fictitious name), Lesley Noah (relating to the refusal to accept her nomination as it did not have 50 suitably qualified nominators), and the Fishing Party and Robert Smith (relating to the registration of the Fishing and Lifestyle Party). The recovery of the legal costs in each of these matters continues to be pursued in the relevant jurisdiction.
In the lead-up to the 21 August 2010 federal election, the AEC became involved in a number of new proceedings in both the Federal Court and the High Court.
In the matter of Rowe v Electoral Commissioner  HCA 46, the High Court dealt with a legal challenge by Shannen Rowe and Douglas Thompson seeking a declaration that certain provisions of the Electoral Act effecting cut-off dates for the consideration of applications for enrolment and transfers of enrolment as an elector were invalid. Although the Electoral Commissioner was named as the first defendant, the AEC took no part in making substantive submissions. This was left to the Commonwealth of Australia as instructed by the Attorney-General's Department and the Department of Finance and Deregulation. The Western Australian Attorney-General also intervened.
One of the challenged provisions (subsection 102(4)) prevented the AEC from considering new claims for enrolment lodged after 8 pm on the date of issuing of the writs for an election, until after the close of polling. Another challenged provision (subsection 102(4AA)) prevented the AEC from considering claims for the transfer of enrolment from 8 pm on the date fixed in the writs for the close of rolls until after the close of polling. A third provision (s.155) was challenged as it provided that the date fixed in the writs for the close of rolls must be on the third working day after the date of issuing of the writs for an election.
All of the challenged provisions were inserted into the Electoral Act by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006. This action followed several reports by the JSCEM (including the October 2002 report entitled The integrity of the electoral roll and the October 2004 report on the conduct of the 2004 election) which, despite finding no evidence of inaccuracies on the roll, concluded that the seven-day period of grace provided an opportunity to manipulate the roll at a time when the AEC was unable to check the integrity of all claims.
On 6 August 2010, the High Court ordered that the amendments made by the 2006 Act were invalid and that the previous seven-day close of rolls period was still in force.
To give effect to the High Court decision, some 100 000 individuals who missed the close of rolls deadlines became entitled to have their claims considered by the AEC because their claims had been received prior to 8 pm on 26 July 2010. The AEC concluded the processing of these claims on 13 August 1010 and sought the Governor-General's agreement to issue a proclamation under s.285 of the Electoral Act so that the 100 000 electors could appear on supplementary certified lists and cast ordinary votes on the same basis as other electors.
In the matter of Getup Ltd v Electoral Commissioner  FCA 869 (13 August 2010), the Federal Court examined the legal status of electronic signatures on enrolment forms that were received by the AEC. The court held that the particular technology and methodology used by Trevitt (a laptop with access to the Internet and a digital pen that was used on the laptop's trackpad) met the requirements of the Electoral Act. As a result of the court decision, Trevitt was enrolled.
In the lead up to the hearing, the Electoral Commissioner wrote to Simon Sheikh of GetUp Ltd, offering to meet to discuss the technology and the balancing of the convenience of electors with the integrity of the voting system (for example, matching signatures on enrolment forms with signatures on declaration envelopes at preliminary scrutiny). The GetUp Ltd OzEnrol website went live and accessible to the public without any prior notice or discussions with the AEC. It was taken down on 17 July 2010, but apparently remained accessible for GetUp Ltd volunteers to use. The original methodology used a mouse track based signature (which did not result in a clear image), or the use of similar biomechanical motions to using a pen to reproduce a signature. However, these proceedings did not involve the use of that particular methodology. Since the Federal Court decision, the AEC has met with Simon Sheikh and other representatives of GetUp Ltd to discuss the implications of the Federal Court's decision and the use of the methodologies that comply with both the requirements of the Electoral Act and the ratio decidendi of the Federal Court's decision.
A number of sections in the Electoral Act authorise political parties and candidates to issue postal vote application forms (PVAs), to have them returned to their offices and then to forward them to the AEC for the issuing of postal votes. During each election campaign, the AEC receives many complaints about the use of PVAs and the permissibility of returning PVAs to the AEC via a political party.
In the matter of Peebles v Honourable Tony Burke MP and Others  FCA 838, Robyn Peebles (a Senate candidate in New South Wales for the Christian Democratic Party (Fred Nile Group)) argued that the sending out of this material by the Hon Tony Burke MP and the Australian Labor Party (New South Wales Branch) involved misleading and deceptive conduct, because the PVAs failed to clearly state the source of the PVA or that it would be returned to that source before being sent to the AEC.
In his reasons for his decision, the Hon Justice Michael Moore stated that there was considerable force in at least some of those contentions. However, the Federal Court dismissed the application, referring to the limited scope of section s.329 of the Electoral Act, which deals with publications that are likely to mislead or deceive an elector in relation to the casting of a vote, and held that the act of applying for a postal vote did not fall within the scope of that section.
Ms Peebles lodged an appeal against the Federal Court decision to the full bench of the Federal Court. This appeal was subsequently withdrawn and replaced with action in the Court of Disputed Returns following the 2010 federal election, as the orders sought in the appeal included discarding all votes that were received by the AEC as a result of PVAs issued by the Australian Labor Party in New South Wales. Costs were awarded in favour of the AEC in Peebles v Honourable Tony Burke (No. 2)  FCA 861.
Nicholas Faulkner has for many years raised concerns about the legal effect of the dissolving of the House of Representatives under s.28 of the Constitution and whether this results in it being misleading and deceptive for a candidate who was formerly a member of the House of Representatives to be able to continue to describe themselves as an 'MP' (member of parliament).
In Faulkner v Elliot and Others  FCA 884 (17 August 2010), Mr Faulkner (an independent candidate for the Division of Richmond) sought urgent orders from the court restraining Justine Elliot from describing herself as a 'Federal Member', 'sitting Member' or 'Incumbent'. Faulkner argued that the use of those descriptions in publications was misleading and deceptive and in breach of s.329 of the Electoral Act.
The Federal Court dismissed the application, finding that the use of 'MP' by a candidate seeking re-election to the House of Representatives is appropriate. The court accepted the existence of a protocol that the continued use of 'MP' might avoid confusion and operate as a proper matter of courtesy in all the circumstances. The court held that a contravention of s.329(1) of the Electoral Act required conduct that was likely to mislead or deceive an elector in relation to the casting of a vote, as opposed to influencing the formation of a judgment by an elector about whom to vote for. The court concluded that the use of the term 'MP' was not in breach of s.329(1) and dismissed the application.
The 40-day period for lodging petitions with the Court of Disputed Returns following the return of the last writ for the 21 August 2010 election ended at close of business on 27 October 2010. The High Court (which is the Court of Disputed Returns) advised that five petitions were filed within the 40 day period: one at the Hobart registry and four at the Sydney registry.
The petition lodged at the Hobart registry involved an allegation that Senator the Hon Eric Abetz had not renounced his German citizenship and was disqualified from standing as a candidate for an election under s.44 of the Constitution. This petition was subsequently withdrawn in November 2010 without proceeding to a hearing.
The four petitions lodged at the Sydney registry were all lodged by the same firm of solicitors on behalf of the Christian Democratic Party (Fred Nile Group). Three of the petitioners (Graham Freemantle, Robyn Peebles and Andrew Green) were candidates for that party at the 2010 federal election, and the fourth petitioner (Greg Briscoe-Hough) was an elector who had previously stood for the Family First Party in New South Wales. The petitions sought to invalidate the elections for the divisions of Banks, Lindsay and Robertson in New South Wales and the Senate election in New South Wales.
All four petitions focused on issues that were previously raised and dismissed by the Federal Court in the case of Peebles v Honourable Tony Burke and Others  FCA 838, in which arguments were run that the issuing and return of PVAs by political parties breached several provisions of the Electoral Act. The Federal Court held that the issuing and returning of PVAs by political parties were not in breach of s.329 of the Electoral Act (that is, were not misleading or deceptive in relation to an elector marking a ballot paper), and that the declaration used on the forms was consistent with the requirements of s.183 and s.184 of the Act. Those arguments were again being used as the basis for the four petitions.
Each petition argued a further ground: that the use of parliamentary allowances by members of parliament to print and distribute the PVAs was in breach of s.48 and s.49 of the Constitution. Other Commonwealth agencies (the Department of the Prime Minister and Cabinet, the Department of Finance and Deregulation and the Attorney-General's Department) were advised of these petitions so that they could determine whether the Commonwealth wished to intervene as a party. The AEC is legally separate from the Commonwealth in these matters and has separately instructed the Australian Government Solicitor and counsel to appear in the four matters. The AEC is also bound by the principles in the matter of R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, which restricts the ability of the AEC to present substantive arguments to the Court of Disputed Returns on non-jurisdictional matters.
Only the petitions lodged on behalf of Andrew Green and Graham Freemantle proceeded to hearing; the petitions lodged on behalf of Robyn Peebles and Greg Briscoe-Hough were withdrawn. The decisions on the petitions of Green and Freemantle can be found at Green v Bradbury  FCA 71 and Freemantle v O'Neill  FCA 72. Orders as to the payment of the legal costs in the petitions involving Green, Freemantle and Peebles were resolved in favour of the AEC in Green v Bradbury (No. 2)  FCA 469.
The AEC conducts elections in various industrial matters. The AEC is the ballot agent for protected action ballots conducted under the Fair Work Act 2009 and other industrial elections conducted under the Fair Work (Registered Organisations) Act 2009.
Legal proceedings under that legislation are usually between two other parties (for example, between the union and the employer or between various candidates standing for election to offices in the registered organisations). The role of the AEC in these matters is normally to seek to be joined as a party to the proceedings so that it is able to assist the court in accordance with the principles established by the High Court in the case of R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
In 2010–10, the AEC was involved in several matters before the Federal Court involving the conduct of industrial elections:
During 2010–11, the AEC was involved in the Australian National Audit Office's audit of the administration of government advertising arrangements. The audit is to examine the effectiveness of the Department of Finance and Deregulation's administration of the Australian Government campaign advertising framework and agencies' compliance with the Guidelines on information and advertising campaigns and the processes associated with exempting campaigns. The audit is expected to be tabled in parliament during the Spring 2011 session.