The AEC provided evidence and submissions to a number of parliamentary committees during 2009–10. The Joint Standing Committee on Electoral Matters (JSCEM) conducted an inquiry into events in the Division of Lindsay and reported in March 2010. The AEC lodged a submission with the JSCEM for its inquiry into allegations of irregularities in the South Australian state election. The AEC also lodged a submission with the Standing Committee on Finance and Public Administration for its inquiry into the Electoral and Referendum Amendment (How-to-Vote Card and Other Measures) Bill 2010 and the Electoral Referendum Amendment (Modernisation and Other Measures) Bill 2010.
On 18 March 2010, the government tabled its response to the JSCEM Report on the conduct of the 2007 federal election and matters related thereto. The government supported 47 recommendations, including:
Where appropriate, the AEC is progressing implementation of the recommendations that do not require legislative change, with an aim of implementing them in time for the 2010 federal election.
Legislative amendments were required to implement a number of the recommendations. In 2009–10, the government introduced a number of Bills to that effect. Of those:
See the 'Legal services' section of this chapter for a summary of the provisions of the Bills.
Following the introduction of the Parliamentary Electorates and Elections Amendment (Automatic Enrolment) Bill 2009 in New South Wales, in December 2009, the JSCEM conducted an inquiry into the implications of the Bill for the conduct of Commonwealth elections. The JSCEM tabled its report on 18 March 2010, recommending that automatic enrolment and election-day enrolment be introduced at the Commonwealth level. The government is considering the report.
The JSCEM also inquired into the distribution of unauthorised election material in the Division of Lindsay at the 2007 federal election. The JSCEM recommended that the Special Minister of State, in consultation with the Attorney-General, introduce legislation to update the penalty provisions of the Electoral Act and Referendum Act (including redrafting s.328 of the Electoral Act as a strict liability offence), then refer the legislation to the committee for a Bills inquiry. The JSCEM also recommended that, at the next federal election, the AEC record all reported polling place offences and the actions taken in response, and provide an appraisal of the adequacy of the powers under the Electoral Act to deal with polling place offences. The government is considering the report.
The AEC also worked with the Department of Finance and Deregulation to provide current information to the minister to assist with the preparation of a final government response to the 2008 JSCEM report on civics and electoral education, further to the interim government response that was tabled in October 2008.
On 10 September 2009, the House of Representatives Standing Committee on Legal and Constitutional Affairs was asked to inquire into the effectiveness of the Referendum (Machinery Provisions) Act 1984 in providing an appropriate framework for the conduct of referendums. The committee was also asked to consider any amendments to the Act required to provide an appropriate framework for the conduct of referendums.
The committee tabled its report on 14 December 2009, making 17 recommendations. The key recommendation was that a 'referendum panel' should be established prior to each referendum. The panel, which would be independent of government, would develop an overarching communications strategy for the referendum, and identify what material should be provided so that electors could make an informed vote.
The committee also recommended that:
The recommendations have implications for a number of agencies, including the Department of the Prime Minister and Cabinet, the Attorney-General's Department and the Department of Finance and Deregulation, as well as the AEC. The government is considering the report.
The government released its second green paper on electoral reform in September 2009, seeking public submissions by 27 November 2009. Ninety-one submissions were received. The AEC has been working with the Electoral Reform Taskforce (coordinated by the Department of the Prime Minister and Cabinet, with membership from that department, the Department of Finance and Deregulation and the AEC) to assist the government in its ongoing consideration of matters arising from the consultation process.
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 (the 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.
In 2009–10, two new applications were lodged with the Administrative Appeals Tribunal (AAT) seeking the review of decisions made by the Commission:
A further application for review lodged with the AAT is by Mr 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 because of his apparent failure to 'sign a claim' as required by s.101(1) of the Electoral Act. This matter is listed for the holding of a preliminary conference in August 2010. The issue in this case is rather novel as it involves the legal issue of what is a signature.
As mentioned in the annual report for 2008–09, there was an application for review by the AAT concerning a decision made by the AEC, 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 for review 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 the AAT decision was handed down on 23 July 2009 (see Liberal Party of Australia and Australian Electoral Commission  AATA 551). The AAT decision varied the AEC delegate's decision and granted access to one additional document containing legal advice. The AEC decision was affirmed in all other respects. The AEC subsequently published this legal advice on the internet so that all persons involved with either lodging applications for the registration of political parties or objecting to the use of a particular name proposed by a new registered political party could be aware of the legal advice that would be used and applied by the AEC in making such decisions under s.129 of the Electoral Act.
The Commonwealth Ombudsman approached the AEC in relation to three matters during 2009–10. All of these matters were finalised during 2009–10. No findings of administrative deficiency were recorded against the AEC. One of these complaints related to previous concerns raised about the length of time involved to process applications for the registration of new political parties. The Commission has noted the difficulties raised by the 500-member test and the need for the AEC to investigate whether each member is either currently on the Commonwealth electoral roll or is entitled to be placed on the roll. This is mostly due to the difficulties in matching names on membership forms with the roll and the fact that even where there is no exact match further investigations must be undertaken to ascertain whether the person may nevertheless be entitled to be enrolled. The AEC is examining potential ways to expedite this process without compromising the integrity of the membership requirements.
The Office of the Privacy Commissioner did not approach the AEC in relation to privacy complaints, or make any determinations involving the AEC, during 2009–10. Therefore, there were no complaints in 2009–10 that led to determinations being made by the Office of the Federal Privacy Commission under s.52 of the Privacy Act.
On 23 June 2010 the AEC received notification of a complaint having been lodged by 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.
Prior to the November 2007 federal election, persons who were sight impaired could only exercise their right to vote by either enrolling as general postal voters (and therefore voting in their residences) or attending a polling place to obtain assistance in marking the ballot papers under s.234 of the Electoral Act. In 2007, Part XVB was inserted into the Electoral Act by the Electoral and Referendum Legislation Amendment Act 2007 and provided the legal authority for the AEC to conduct a trial of electronic voting for sight-impaired people. However, s.202(1B) of the Electoral Act provides that the trial was to be for an electronically assisted voting method 'at the first general election, and the first Senate election, held after the commencement of this section'. That section commenced on 15 March 2007 and the first general election and Senate election took place on 24 November 2007. Accordingly, the power for the AEC to conduct electronically assisted voting for sight-impaired people expired at 6pm on 24 November 2007, there being no legal authority or prescribed processes for any continuation of electronic voting under the Electoral Act for any future federal electoral events.
In March 2009, the JSCEM issued an interim report on the 2007 federal election electronic voting trials. The JSCEM recognised the strong value placed by some electors who are blind or have low vision on their ability to cast a secret and independent vote and noted that the ability to cast votes in this way should be facilitated where practicable.
In the interim report, the JSCEM noted that electors who are blind or have low vision are still able to cast a vote at an election with the assistance of a person of their choosing. An assisted vote, while not a secret and independent vote, still allows electors who are blind or have low vision to participate in the electoral process. The JSCEM further noted that the cost of delivering electronically assisted voting for electors who are blind or have low vision, at $2.2 million or $2 597 per vote cast, compared to an average cost per elector of $8.36, at the 2007 federal election, appears to be unsustainable especially given the low participation in the trial. Extending eligibility to electors with a print disability appears to provide some opportunity to increase participation in electronically assisted voting. However, it does not appear that this can be done in a way that will drive average costs down to sustainable levels.
The JSCEM recommended that electronically assisted voting for electors who are blind or have low vision should not be continued at future federal elections. The JSCEM also noted that electors who have low vision may benefit from the provision of electronic magnifiers and recommended that the government provide sufficient resources to the AEC for the deployment of electronic magnifiers at sites where there is likely to be demand from electors who have low vision.
The government accepted the JSCEM recommendations. However, the government noted that the AEC would continue to consult with peak bodies which represent persons who are blind and have low vision to consider cost-effective options to enable voters who are blind or have low vision to cast a secret and independent vote at the next federal election.
The AEC worked with these peak bodies to develop an interim solution that was cost effective and could likely be implemented in the time constraints for the next federal election. The government accepted the interim solution. On 17 June 2010 the Senate passed the Electoral and Referendum Amendment (Pre-Poll Voting and other Measures) Bill 2010, which contained a new Part XVB of the Electoral Act to authorise the AEC to enable voting to be undertaken by the blind and visually impaired under interim arrangements involving the use of telephones located in divisional offices and certain other premises. Regulations were prepared to specify the new procedures so they could be in place in time for the 2010 general election.
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 include the matters involving Mr Albert Langer also known as Arthur Dent (relating to the refusal to accept his enrolment under a fictitious name); Ms Lesley Noah (relating to the refusal to accept her nomination because it did not have 50 nominators); and the Fishing Party and Mr Robert Smith (in relation to the registration of the Fishing and Lifestyle Party). The recovery of legal costs in each of these matters is being pursued by the relevant jurisdiction.
The AEC also 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. These legal proceedings 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.
Under s.182 of the Fair Work (Registered Organisations) Act 2009 elections for offices in organisations are to be conducted by the AEC unless Fair Work Australia has granted an exemption (see s.183). Organisations are required to lodge the required details for an election with Fair Work Australia (see s.189) and, when that information is provided, the General Manager of Fair Work Australia is required to pass the information to the AEC. The AEC then proceeds to conduct the election. There are a number of offences in relation to actions which hinder or obstruct an election and the AEC would refer allegations of breaches to either the General Manager of Fair Work Australia or to the Australian Federal Police. If the allegation can be construed as an 'irregularity' that has affected the outcome of the election (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)  FCA 1015), then, under s.200(2) of the Fair Work (Registered Organisations) Act 2009, the AEC is required to make an application to the Federal Court for an inquiry.
Cases in which the AEC was involved before the Federal Court of Australia in 2009–10 include two matters involving the Victoria No. 1 Branch of the Health Services Union. Two other cases before the Federal Court involved the Australian Salaried Medical Officers' Federation and the Australian Licensed Aircraft Engineers' Association.
In 2009–10, the Australian National Audit Office (ANAO) tabled in parliament several reports which had an effect on the AEC. They included cross-agency audits directly involving the AEC, and other audits that made recommendations for all agencies.
The ANAO conducted one agency-specific performance audit of the AEC, assessing the AEC's preparation for and conduct of the 2007 federal election (ANAO Performance audit report no. 28 of 2009–10, tabled on 21 April 2010).
The audit assessed 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 ANAO concluded that the AEC's planning and preparation for the 2007 federal election was effective, and that the AEC's processes supported the fair and accurate counting of votes. However, it noted evidence that elements of the existing approaches may be reaching their limit in terms of cost-effectiveness.
The audit made nine recommendations related to improvement in: enrolment and election processes, recruitment and training, cross-government and stakeholder cooperation, and reporting. The AEC accepted all nine recommendations.