4Managing the AEC

External scrutiny

Customer scrutiny

Service Charter

An updated AEC Service Charter was published on the AEC website in February 2016.

The Charter informs the public of the service they can expect to receive when interacting with the AEC. The Charter reflects and supports the AEC values of electoral integrity through quality, agility and professionalism. As a high-level document, the Charter is also a central link to the more detailed performance standards available in individual event or business area service plans.

Customer enquiries, issues and complaints

The AEC receives enquiries and feedback from the public and other stakeholders through a range of contact channels including telephone, email, social media, facsimile, postal mail and in person.

In 2015–16, outside of the federal election period, the AEC received over 43 000 phone calls, over 30 000 emails and approximately 10 000 in-person contacts from the public.

During the election period the AEC partnered with the Department of Human Services to deliver election contact centre services on behalf of the AEC. These arrangements began on 2 May 2016, ahead of the formal election announcement on Sunday 8 May 2016. In the period to 30 June 2016, the election contact centre service received over 560 000 telephone enquiries, 56 000 email enquiries and 35 000 requests for products.

National complaints management framework

The AEC Complaints Management Policy is available on the AEC website and sets out the processes the AEC will follow in the management of a complaint. The policy also outlines the six principles of accessibility, responsiveness, confidentiality, fairness, transparency and efficiency, which are fundamental to the AEC’s management of complaints. The policy is supported by two internal procedure documents on complaints management and internal review of complaints.

Administrative scrutiny

Guiding legislation

The administrative practices and decisions of the AEC are subject to a number of pieces of legislation as outlined in Table 29.

Table 29: Guiding legislation for AEC administrative decisions
Act Governing body Related matters
Administrative Appeals Tribunal Act 1975 Administrative Appeals Tribunal Certain administrative decisions made under the Electoral Act.
Ombudsman Act 1976 Commonwealth Ombudsman Complaints about matters of administration relating to AEC functions.
Privacy Act 1988 Office of the Australian Information Commissioner (the Privacy Commissioner) Complaints about breaches of privacy rights.
Freedom of Information Act 1982

Australian Information Commissioner

Freedom of Information Commissioner

Complaints about, and delays in, the handling of requests for access to information.
Human Rights and Equal Opportunity Commission Act 1986 Australian Human Rights Commission Complaints that claim the AEC has unlawfully discriminated against an individual.

Relevant reports and reviews

Administrative Appeals Tribunal

There were three matters before the Administrative Appeals Tribunal (AAT) during the 2015–16 reporting period.

Matter relating to access refusal under FOI

On 30 June 2014 Mr Michael Cordover made an application to the AAT seeking a review of a decision of the Australian Electoral Commission (AEC) to refuse access under the Freedom of Information Act 1982 (FOI Act) to the source code of the computer system used to count the votes in Senate and other elections (2014/3361). The AEC had claimed the documents were exempt from disclosure on the grounds that they contained information that had a commercial value that would be diminished if disclosed (see section 47(1) of the FOI Act). A hearing was held in late July 2015 with the AAT allowing further written submissions to be made by 18 August 2015 before determining the matter. A decision affirming the AEC’s refusal under the FOI Act was handed down on 11 December 2015.

Matter relating to the abbreviation of party names

On 31 December 2013 the Liberal Party of Australia made an application to the AAT pursuant to section 141(5) of the Commonwealth Electoral Act 1918 (Electoral Act) seeking a review of the decision by the AEC to allow the Liberal Democratic Party to register the abbreviation ‘Liberal Democrats’ (2013/6987). Under the Electoral Act, the registered abbreviation of a political party may appear on a ballot paper. The progress of the application was slowed by the operation of section 127 of the Electoral Act, which prevents an AAT application proceeding during the period between the issuing of the writs for an election or a by-election and the return of the election writs. The Griffith by-election was conducted on 8 February 2014; the WA Senate Election on 5 April 2014; the Canning by-election on 19 September 2015 and the North Sydney by-election on 5 December 2015.

The matter was finally listed for hearing on 21 March 2016. However, before this hearing could take place, the Liberal Party of Australia withdrew the application and the matter was dismissed.

Matter relating to registered officers of a registered political party – Australian Democrats

Mr Horrex sought review of the decision by the Australian Electoral Commission that affirmed the decision of a delegate of the Commission not to change the Register of Political Parties (by substituting Mr Stuart Horrex for Mr John Bell as Registered Officer of the Australian Democrats). The matter was set down for hearing in May 2015.

However, in April 2015, pursuant to section 137 of the Electoral Act, the AEC deregistered the Australian Democrats on the basis of failure to demonstrate that it had the requisite 500 members to maintain registration. Accordingly, the AAT vacated the hearing date for Mr Horrex’s application and adjourned the matter pending any hearing and determination of proceedings arising from deregistration of the Australian Democrats.

On 4 May 2016, the Electoral Commission upheld the decision to deregister the Australian Democrats under section 137(6) of the Electoral Act. On 9 May 2016 the AAT dismissed Mr Horrex’s application under section 42B of the Administrative Appeals Tribunal Act 1975 on the basis that the proceedings had become ‘frivolous’ as any decision of the Tribunal would be of no effect due to the deregistration.

Commonwealth Ombudsman

There were no investigations undertaken by the Ombudsman into the AEC’s administration during the reporting period.

Office of the Australian Information Commissioner

The AEC reported three privacy breaches to the Office of the Australian Information Commissioner during the reporting period. The first breach occurred in the lead-up to the Canning by-election, with two laptop computers being stolen from the home of a polling official that contained the approved list of electors. The information contained on the computers was encrypted in line with Australian Signals Directorate recommendations.

The second and third privacy breaches occurred in the lead-up to the 2016 federal election. Both breaches involved the AEC misdirecting partially completed enrolment claim forms to the wrong elector. The first breach occurred in Victoria, where seven electors were affected. The second breach occurred in Queensland, where two electors were affected. The AEC has since changed its administrative practices to prevent future privacy breaches.

Australian Human Rights Commission

On 26 May 2016, the Australian Human Rights Commission (AHRC) advised the AEC that it had received a complaint that the AEC’s assisted voting services were discriminatory to electors who are blind or visually impaired. The complainant also alleged that the AEC was in breach of its obligations under the Disability Discrimination Act 1992 and had discriminated against the complainant.

On 2 June 2016, the AEC advised the AHRC that the AEC could not agree to entering a conciliation process because the AEC has little discretion to remedy the complaint in the manner sought by the complainant, as the AEC is constrained by both the legislation under which it operates and the allocation of resources by the government. The AHRC’s consideration of this matter is ongoing.

Judicial scrutiny

High Court

Murphy v Electoral Commissioner & Anor (12 May 2016)

The plaintiffs commenced proceedings in the High Court challenging the constitutional validity of the provisions of the Electoral Act that suspend the processing of enrolment claims or transfer of enrolments seven days after the issue of the writs for an election until after polling day. The plaintiffs sought a declaration that those sections of the Electoral Act are invalid, arguing that the suspension period was incompatible with sections 7 and 24 of the Constitution which require that Members of the House of Representatives and Senators be ‘directly chosen by the people’.

In a special case referred to the Full Court, the High Court held that sections 94A(4), 95(4), 102(4), 103A(5), 103B(5) and 118(5) of the Electoral Act are not contrary to sections 7 and 24 of the Constitution and are therefore valid. As at 30 June 2016 the High Court was yet to hand down its reason for decision in this matter.

Further information: Murphy & Anor v Electoral Commissioner & Anor, Case M247/2015 [2016], High Court of Australia Transcripts 108 (11 May 2016) and 111 (12 May 2016).

Day v Australian Electoral Officer for the State of South Australia (13 May 2016); and Madden & Ors v Australian Electoral Officer for the State of Tasmania & Ors (13 May 2016)

On 22 March 2016 Mr Robert Day, a Senator for South Australia, filed an application in the High Court challenging new provisions of the Electoral Act concerning the new form of the Senate ballot paper and the process for marking it either above the line or below the line. The challenge relied principally on sections 7 and 9 of the Constitution. Mr Peter Madden and six other electors also commenced proceedings challenging the provisions and the matters were joined.

The plaintiffs sought declarations and writs of mandamus and prohibition directed to the Australian Electoral Officers for the States and Territories and to the Commonwealth, contending that the new form of ballot paper and the alternative means of marking it above and below a dividing line constitute more than one method of choosing senators, contrary to section 9 of the Constitution. They also contended that allowing a vote for a party or group departs from section 7 of the Constitution that Senators will be ‘directly chosen by the people’.

On 13 May 2016, the full bench of the High Court unanimously dismissed the applications with costs. The High Court held that the term ‘method’ in section 9 of the Constitution is to be construed broadly, allowing for more than one way of indicating choice within a single uniform electoral system. The High Court further held that a vote above the line was a direct vote for individual candidates consistent with section 7 of the Constitution. The Court also held that there was no infringement of the principle of proportional representation and accordingly no disenfranchisement of electors. The contention that the ballot paper misleads electors about their voting options and thereby infringes the implied freedom of political communication or the system of representative government was also rejected.

Further information: Day v Australian Electoral Officer for the State of South Australia & Anor, Case S77/2016 [2016], High Court of Australia 20 (13 May 2016); and Madden & Ors v Australian Electoral Officer for the State of Tasmania & Ors, Case S109/2016 [2016], High Court of Australia 20 (13 May 2016).

Dieter Horn v Electoral Commissioner (23 June 2016)

In this case Mr Horn challenged the existing interpretation of section 206 of the Electoral Act which provides for separate voting compartments at polling booths. In particular, Mr Horn sought a writ of mandamus to compel the AEC to provide fully enclosed voting compartments at the 2 July 2016 federal election. The matter was heard on 23 June 2016 before Chief Justice French in the High Court of Australia. His Honour dismissed the application as an abuse of process and made no order as to costs.

Further information: Horn v Electoral Commissioner [2016], High Court of Australia Transcripts 149 (23 June 2016).

Federal Court

Administrative Decisions Judicial Review

There were no applications to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 during the reporting period.

Industrial elections

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 it conducts elections for office bearers in industrial elections under the Fair Work (Registered Organisations) Act 2009. These industrial elections can give rise to disputes between two or more parties – for example, between the industrial organisation and the employer, or between various candidates standing for election to office-bearer positions. The role of the AEC in these matters is normally to seek to be joined as a party to the proceedings so that it can 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), Commonwealth Law Reports volume 144, page 13.

Under section 182 of the Fair Work (Registered Organisations) Act 2009, the AEC must conduct elections for office bearers in industrial organisations unless the Fair Work Commission has granted an exemption (section 183). Organisations must lodge the required details for an election with the Fair Work Commission (section 189). When that information is provided to the Fair Work Commission, the general manager of the Fair Work Commission is required to pass the information to the AEC. The AEC then conducts the election.

There are a number of offences in relation to actions which hinder or obstruct an election. The AEC refers allegations of breaches to either the general manager of the Fair Work Commission or the Australian Federal Police. If the allegation can be construed as an ‘irregularity’ (see Mcjannett, in the matter of an application for an inquiry in relation to an election for offices in the Construction, Forestry, Mining and Energy Union, Western Australian Branch (No. 2) [2009] Federal Court of Australia 1015) that has affected the outcome of the election then, under section 200(2) of the Fair Work (Registered Organisations) Act 2009, the AEC is required to apply to the Federal Court for an inquiry.

The AEC was a party to three proceedings before the Federal Court during 2015–16 in relation to industrial elections. These cases are set out in the three following sections.

Electoral Commissioner in the matter of an election for an office in the Australian Federal Police Association Branch of the Police Federation of Australia

On 1 September 2015 the Electoral Commissioner filed an application under section 200 of the Fair Work (Registered Organisations) Act 2009 into alleged irregularities in respect of the Australian Federal Police Association Branch of the Police Federation of Australia election 2015 (Federal Court ref. NSD1038/2015). The alleged irregularity was in relation to the conduct of the nominations process, the close of rolls period and the failure to deliver ballot papers to all eligible members. In particular the organisational restructure of the Association was not correctly reflected in the rolls and as a result members were not aware of entitlement to nominate or vote in certain zones.

The matter was listed for hearing before Justice Katzmann of the Federal Court on 15 and 16 December 2015, and Orders were handed down on 5 May 2016. The Court declared that the affected elections were void and ordered the Fair Work Commission to issue new arrangements for the AEC to conduct a fresh election.

Further information: Electoral Commissioner in the matter of an election for an office in the Australian Federal Police Association Branch of the Police Federation of Australia [2016], Federal Court of Australia 469 (5 May 2016).

Electoral Commissioner in the matter of an election for offices in the Local Government and Shires Association of New South Wales

On 13 January 2016 the Electoral Commissioner filed an application under section 200 of the Fair Work (Registered Organisations) Act 2009 into alleged irregularities in respect of the Local Government and Shires Association of New South Wales Election 2015 (Federal Court ref. NSW53/2016). The alleged irregularity was that the AEC had accepted an incorrect roll of voters from the Association and as a result the Hawkesbury City Council voting delegation were issued with ballot papers for the wrong voting area, which affected the result of the election for particular offices. On 29 March 2016 the Court declared the election for the affected offices void and ordered the AEC to re-take steps in the election for the affected offices ([2016] Federal Court of Australia 327). On 15 April the Returning Officer issued a new election notice specifying the conduct of the election by postal ballot closing 30 June 2016.

On 2 June the Association sought leave to the Court to vary the Court Orders in regards to the voting eligibility of Councils that had been abolished as a result of the New South Wales Local Government (Council Amalgamations) Proclamation on 12 May 2016. On 3 June 2016, Justice Buchanan made orders varying the March 29 Orders to the effect that Councils that were abolished as a result of the amalgamations were no longer eligible to field candidates for the offices or nominate voting delegates ([2016] Federal Court of Australia 668). The Court Orders were made by consent between the Association and the AEC, and the postal ballot was conducted in June 2016.

Further information: Electoral Commissioner in the matter of an election for offices in the Local Government and Shires Association of New South Wales [2016], Federal Court of Australia 327 (5 April 2016); and Electoral Commissioner in the matter of an election for offices in the Local Government and Shires Association of New South Wales (No. 2) [2016], Federal Court of Australia 668 (3 June 2016).

Lillywhite in the matter of an application for inquiry in relation to elections for offices in the Community and Public Section Union, State Public Services Federation (SPSF) Group, Victorian Branch

On 6 May 2016 Mr Peter Lillywhite, a Branch member of the Community and Public Sector Union (CPSU), filed an application under section 200 of the Fair Work (Registered Organisations) Act 2009 into alleged irregularities in respect of the elections for offices in the CPSU, SPSF Group, Victorian Branch. The alleged irregularity was that the Returning Officer accepted nominations from members who were not eligible to nominate for Branch Secretary for the SPSF Group and Branch Council Delegate in Electorate 1 in the SPSF Group.

The matter was listed for hearing before Justice Moshinsky of the Federal Court on 11 May 2016 and Orders were handed down on 31 May 2016. The Court found that the acceptance of nominations from ineligible members resulted in an irregularity in relation to those elections. The Court declared that the acceptance of the affected nominations was void. The CPSU Victoria Branch was not otherwise affected and the conduct of the election proceeded.

Further information: Lillywhite in the matter of an application for inquiry in relation to elections for offices in the Community and Public Sector Union, SPSF Group, Victorian Branch [2016], Federal Court of Australia 700 (31 May 2016).

Parliamentary scrutiny

Services to the Australian Parliament

The AEC is accountable to the Australian Parliament in relation to its statutory responsibilities under the Electoral Act, the Referendum Act and related legislation. The AEC provides evidence and advice to the Joint Standing Committee on Electoral Matters (JSCEM) and the Finance and Public Administration Committee.

Parliamentary inquiries

The JSCEM continues to be the central point for parliamentary consideration and debate on electoral law, administration and legislative reform. Other parliamentary committees have also conducted inquiries relating to electoral matters. The AEC makes submissions and provides information to parliamentary inquiries where appropriate, and appears at hearings.

Parliamentary inquiries conducted in 2015–16 and contributed to by the AEC are summarised in Table 30.

Table 30: Parliamentary inquiries and AEC involvement 2015–16
Inquiry Committee Date AEC involvement Status
Inquiry into electoral education Joint Standing Committee on Electoral Matters 23 June 2015 – 9 May 2016 The AEC made a submission, appeared at a public hearing and made a supplementary submission. Lapsed when Parliament dissolved on 9 May 2016.
Inquiry into campaigning at polling places Joint Standing Committee on Electoral Matters 17 June 2015 – 9 May 2016 The AEC made a submission, appeared at two public hearings and made a supplementary submission. Lapsed when Parliament dissolved on 9 May 2016.
Inquiry into political donations Joint Standing Committee on Electoral Matters 15 October 2015 – 9 May 2016 The AEC made a submission. Lapsed when Parliament dissolved on 9 May 2016.
Commonwealth Electoral Amendment Bill 2016 (Senate voting reform) Joint Standing Committee on Electoral Matters 22 February 2016 – 2 March 2016 The AEC made a submission, appeared at a public hearing and made a supplementary submission. Advisory report tabled on 2 March 2016.
The matter of a popular vote, in the form of a plebiscite or referendum, on the matter of marriage in Australia Senate Legal and Constitutional Affairs Committee 20 August 2015 – 15 September 2015 The AEC made a submission, appeared at a public hearing and made a supplementary submission. Report tabled on 15 September 2016.
Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2016 Senate Finance and Public Administration References Committee 3 March 2016 – 9 May 2016 The AEC wrote a letter to the committee. Lapsed when Parliament dissolved on 9 May 2016.
Commonwealth legislative provisions relating to oversight of associated entities of political parties Senate Finance and Public Administration References Committee 19 April 2016 – 4 May 2016 The AEC made a submission, appeared at a public hearing and answered questions taken on notice.

Interim report tabled 29 April 2016.

Final report tabled 4 May 2016.

In addition to contributing to such inquiries, in the normal conduct of its functions the AEC meets regularly with government on electoral matters.