Year in review

AEC overview

Report on performance: Outcome 1

Report on performance: Outcome 2

Report on performance: Outcome 3

Management and accountability

Financial performance and future operations

Appendices

References

External scrutiny

Updated: 20 December 2010

Parliamentary scrutiny

In February 2008, the then Special Minister of State, Senator the Hon. John Faulkner, asked the Joint Standing Committee on Electoral Matters to inquire into and report on all aspects of the 2007 federal election. The AEC's main submission to the inquiry was lodged in June 2008. The AEC gave evidence at public hearings of the committee held in Canberra on 1 September 2008, 17 October 2008, 17 March 2009 and 11 May 2009 and in state capitals on 6 August 2008, 11 August 2008, 12 August 2008, 20 August 2008 and 21 August 2008. The report was tabled in Parliament on 22 June 2009.

Administrative scrutiny

Certain administrative decisions made by the AEC under the Commonwealth Electoral Act 1918 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 (Privacy Act). 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.

Administrative Appeals Tribunal

In 2008–09, only one new application for review was made to the Administrative Appeals Tribunal (AAT) seeking the review of a decision made by an AEC officer, and several ongoing matters were finalised.

The new AAT application related to a decision made by AEC officers under the Freedom of Information Act 1982 involving access to documents containing legal advice that was used to make a decision on the registration of a political party. The application was made by a currently registered political party which objected to the proposed name of the new political party. This matter was heard by the AAT on 11 June 2009 and a decision is pending.

AEC decisions about the registration of political parties under Part XI of the Electoral Act may also be reviewed by the AAT. The registration of a political party enables the party to appear under the registered name on the ballot papers and to receive election funding (see s. 126 of the Electoral Act).

There are several requests lodged with the AEC under s. 141 of the Electoral Act seeking the internal review of decisions made by AEC officers on the registration of political parties. These requests may lead to applications being made to the AAT.

The 2007 application for review lodged by the registered officer of the Fishing Party, seeking to have the AEC's decision to register the Australian Fishing and Lifestyle Party overturned, was dismissed by the AAT on 17 March 2009 (see The Fishing Party and the Australian Electoral Commission and Others [2009] AATA 170). The matter concerned the question of whether the 500 members named in the Australian Fishing and Lifestyle Party's application for registration were actually members of the proposed party or members of the Fishing Party. When the matter first came before the AAT, it was accepted that s. 127 of the Electoral Act applied to prevent any hearing taking place until after the writs for the election had been returned (they were returned on 21 December 2007). The AAT affirmed the AEC decision to register the Australian Fishing and Lifestyle Party. The AAT held that there was no evidence of fraud or misrepresentation about the members of the new party and that the names of the two parties were not so similar as to result in confusion or mistake by voters at the ballot box.

Commonwealth Ombudsman

The Commonwealth Ombudsman approached the AEC in relation to three matters during 2008–09. Two matters related to perceived delays and one was incorrectly directed to the AEC. Two of the three matters, along with the two outstanding matters from 2007–08, were finalised during 2008–09. Two findings of administrative deficiency were recorded against the AEC and resolved. One was on the basis of flawed administrative process, as AEC officers had failed to alert an elector to the potential legal consequences of casting multiple votes in the election. The other was for unreasonable delay in taking action on an application for registration as a political party.

Privacy Commissioner

The Office of the Privacy Commissioner did not approach the AEC in relation to any privacy complaints during 2008–09. Therefore, there were no complaints in 2008–09 that led to determinations being made by the Office of the Federal Privacy Commission under s. 52 of the Privacy Act 1988.

Australian Human Rights Commission

No complaints about the AEC were lodged with the Australian Human Rights Commission in 2008–09.

Judicial scrutiny

A number of previously reported matters involving the judicial review of AEC decisions continued in 2008–09. A new petition was lodged with the Court of Disputed Returns relating to the by-election that was held in the Division of Lyne on 6 September 2008.

Registration of political parties

The AEC's decision to register the Australian Fishing and Lifestyle Party was challenged in several applications made to the Federal Court by persons associated with the Fishing Party. The issue in these cases was whether the decision to register the Australian Fishing and Lifestyle Party was in accordance with the requirements of s. 126 and s. 129 of the Electoral Act. The Federal Court dismissed all of these legal challenges (see Sharples v AEC [2007] FCA 2102, Sharples v AEC (No. 2) [2007] FCA 2103 and Sharples v AEC (No. 3) [2008] FCA 63).

Mr Robert Smith, the registered officer of the Fishing Party, lodged a petition with the Court of Disputed Returns (CDR) claiming that the registration of the Australian Fishing and Lifestyle Party was an illegal practice and that the results of the Senate elections in New South Wales and Queensland were likely to be affected. The original petition was dismissed by the CDR in a decision dated 27 June 2008 in the case of Smith v Australian Electoral Commission [2008] FCA 953. The CDR found that the petition was defective and, as a matter of substance, was doomed to failure. Mr Smith subsequently purported to appeal the CDR's decision despite the prohibition contained in s. 368 of the Commonwealth Electoral Act 1918. In a decision dated 1 April 2009, the Full Federal Court dismissed the appeal, finding that the appeal was incompetent, and awarded costs related to the purported appeal in favour of the AEC.

Enrolment

Several applications were lodged in the AAT, Federal Court and High Court by Mr Albert Langer against the actions of the Australian Electoral Officer for Victoria in refusing to place Mr Langer on the electoral roll under the name of Arthur Dent. The Federal Court previously dismissed Mr Langer's claims in four matters. The Full Federal Court dismissed Mr Langer's various appeals in a decision handed down on 21 August 2008 in the case of Arthur Dent v AEC and Another [2008] FCAFC 153.

Mr Langer also lodged an appeal with the High Court. The Special Leave application to the High Court was dismissed on 27 May 2009 and reported at Dent v Wight and Another [2009] HCASL 114. In all of the Federal Court and High Court proceedings, costs orders were made in favour of the AEC.

Nomination

As described in last year's annual report, a novel issue was brought before the Federal Magistrates Court, relating to the requirements for a valid nomination of a candidate for the election. Section 166 of the Electoral Act requires that an unendorsed candidate must have the nomination form supported by 50 persons entitled to vote at the election in which the candidate is seeking to be nominated. In the case of Noah v Campbell [2007] FMCA 2128, Ms Lesley Noah attempted to argue that the decision of the divisional returning officer in rejecting her nomination was unlawful. Ms Noah attempted to argue that she is legally able to nominate herself and that she could therefore be one of the 50 persons required by s. 166 to have signed the nomination form. The Court dismissed the claim that the divisional returning officer's decision had been unlawful, indicating that plain reading of the legislation clearly favoured the view that candidates could not nominate themselves, and that there needed to be 51 people named on the nomination form: 50 nominators and one nominee.

The court also awarded costs against Ms Noah; in 2008–09 her failure to pay those costs resulted in contempt action in the case of Noah v Bailey [2008] FMCA 1426. Ms Noah subsequently appealed against the contempt finding and a hearing was held on 22 October 2008. By 30 June 2009, no decision had been handed down in this matter.

By-election results

Following the 2008 by-election for the Division of Lyne, Mr Stewart Scott-Irving, a candidate in the by-election, lodged a petition with the CDR seeking to have the election voided due to an illegal practice. Mr Scott-Irving argued that the media coverage by the ABC of the candidates leading up to the by-election was not conducted in an equitable manner in accordance with the ABC charter and that the results of the by-election should be voided. The High Court remitted this matter to the Federal Court to determine, sitting as the CDR. The petition was dismissed by the CDR in a decision dated 15 May 2009 in the case of Scott-Irving v Oakeshott and Others [2009] FCA 487. The CDR found that none of the alleged facts pleaded by Mr Scott-Irving disclosed any breach of the requirements of the Electoral Act. The CDR awarded costs in favour of the AEC.

Performance audits

In October 2008, the Australian National Audit Office (ANAO) commenced a performance audit on the AEC's Preparation for and Management of the 2007 General Election. The objectives of the audit are to assess the effectiveness of measures taken to ensure the accuracy of the electoral roll and the effectiveness of the AEC's planning and preparation for and conduct of by-elections and the 2007 federal election. The audit will also take into account the recommendations and underlying findings of the Joint Standing Committee on Electoral Matters' 2007 report, Review of certain aspects of the administration of the Australian Electoral Commission. Fieldwork is ongoing and the report is scheduled to be tabled towards the end of 2009.

The AEC was used as a case study by the ANAO in its Better practice guide: Business continuity management – building resilience in public sector entities, published in June 2009. The case study demonstrated how the AEC prevented disruption to one of its critical business processes – the virtual tally room on election night. The virtual tally room represented a robust system that provided users with reliable, rapid access to results, reflecting up-to-date information.