Annual Report 2013–14

Governance and accountability

External scrutiny

Parliamentary scrutiny

The AEC is accountable to the federal parliament primarily in respect to its statutory responsibilities under the Electoral Act, the Referendum Act and related legislation. The AEC provides evidence to various parliamentary committees but primarily to the Joint Standing Committee on Electoral Matters.

Legislation programme

Following the then Prime Minister’s election announcement on 4 August 2013, the 43rd Parliament was dissolved and prorogued on 5 August 2013 in preparation for the 7 September 2013 federal election.

The last sitting day for the House of Representatives was 27 June 2013 and the last sitting day for the Senate was 28 June 2013. After the election, the first sitting day of the 44th Parliament was 12 November 2013. The Joint Standing Committee on Electoral Matters was again appointed by resolution of the parliament (passed by the House of Representatives on 21 November 2013 and the Senate on 2 December 2013).

As at 30 June 2014 no legislation relating to the Electoral Act or the Referendum Act had been approved for introduction into the parliament.

Joint Standing Committee on Electoral Matters

The Joint Standing Committee on Electoral Matters (JSCEM) continues to be the central point for consideration and debate on electoral law, administration and legislative reform. Through this process, the AEC can provide recommendations to the committee for consideration that may inform legislative change.

The JSCEM for the 43rd Parliament was dissolved when parliament was prorogued for the 2013 federal election. After the appointment of the JSCEM for the 44th Parliament, on 5 December 2013, the Special Minister of State, Senator the Hon Michael Ronaldson, asked the committee to inquire into and report on all aspects of the conduct of the 2013 federal election and related matters.

Inquiry into the Commonwealth Electoral Amendment (Above the Line Voting) Bill 2013

The JSCEM decided to incorporate consideration of the Commonwealth Electoral Amendment (Above the Line Voting) Bill 2013 into its inquiry into the 2013 federal election.

Inquiry into and report on all aspects of the conduct of the 2013 federal election and matters related thereto

The AEC has provided a primary submission and a number of supplementary submissions to the inquiry and expects to provide further evidence as required in the future. In its primary submission, the AEC made 13 recommendations to improve processes associated with election administration. Its recommendations were developed from an evaluation of the conduct of the 2013 federal election.

The AEC also gave evidence at public hearings held in Canberra, Sydney, Melbourne, Hobart, Brisbane and Adelaide, and hosted members of the committee at several divisional office visits, including during the 2014 Western Australian Senate election where they observed operational practices.

On Friday 9 May 2014 the committee tabled its unanimously supported report Interim report on the inquiry into the conduct of the 2013 federal election: Senate voting practices. At 30 June 2014 the Government had not responded to the report.

Services to parliament

In 2013–14 the AEC provided support services to the parliament, and to the Special Minister of State, on the administration of the Electoral Act and the Referendum Act. It responded to requests for input to Cabinet submissions, particularly those that affected electoral and referendum matters. Conduct of the 2013 federal election saw a large increase in the amount of ministerial correspondence referred to the AEC. The Minister referred 165 letters to the AEC for input. Major themes included the conduct of the 2013 federal election, voting, enrolment, the missing ballot papers from the Western Australian Senate election, and access to information from the Commonwealth electoral roll.

Administrative scrutiny

Certain administrative decisions that the AEC makes under the Electoral Act are subject to merits review by the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975.

The Commonwealth Ombudsman, under the Ombudsman Act 1976, manages complaints about administration relating to AEC functions.

Under the Privacy Act 1988, complaints about breaches of privacy rights can be lodged with the Privacy Commissioner at the Office of the Australian Information Commissioner. The Australian Information Commissioner and the Freedom of Information Commissioner deal with complaints about and delays in the handling of requests for access to information under the Freedom of Information Act 1982.

The Australian Human Rights Commission, under the Human Rights and Equal Opportunity Commission Act 1986, manages complaints that claim the AEC may have unlawfully discriminated against someone.

Administrative Appeals Tribunal

The Administrative Appeals Tribunal reviewed several matters involving the Australian Democrats during the reporting period. Details are provided under ‘Judicial scrutiny’ below.

Australian National Audit Office

The Australian National Audit Office (ANAO) provides quarterly audit activity reports to the AEC Business Assurance Committee. In 2013–14 the ANAO completed two specific performance audits on the implementation of recommendations in Performance Audit Report No 28 2009–10, The Australian Electoral Commission’s preparation for and conduct of the 2007 federal general election.

In May 2014 the ANAO tabled the first of two reports: Performance Audit Report No 31 2013–14, The Australian Electoral Commission’s storage and transport of completed ballot papers at the September 2013 federal general election. The AEC is currently implementing report recommendations. The ANAO has advised the second report is due to be tabled in late 2014.

Commonwealth Ombudsman

During 2013–14 the Commonwealth Ombudsman approached the AEC about six matters: three concerned claims the AEC had not responded in a timely way to complaints received during the 2013 federal election; two involved claims that businesses wishing to access the electoral roll had been refused permission; and one involved a complaint about the handling of ballot papers. The first three matters were finalised and no findings of administrative deficiency were recorded against the AEC. At 30 June 2014, the last three matters were not yet finalised.

Office of the Australian Information Commissioner (including the Privacy Commissioner and the Freedom of Information Commissioner)

The AEC received two privacy complaints in 2013–14 through the Office of the Privacy Commissioner. Both matters related to the requirements under the Electoral Act to include personal information about an elector on the envelopes containing postal vote certificates. The complaints were both dismissed. This means that no determinations were made by the Office of the Federal Privacy Commission under section 52 of the Privacy Act.

Three matters involving the AEC were the subject of reviews by the Australian Information Commissioner or the Freedom of Information Commissioner under the Freedom of Information Act. One of these reviews affirmed the AEC’s decision. The other matters were yet to be finalised as at 30 June 2014.

Australian Human Rights Commission

The AEC received two complaints in 2013–14 through the Australian Human Rights Commission. The first concerned voting options available to people who are vision impaired. This complaint was mediated and then dismissed. The second concerned temporary staff engaged in the conduct of the election. As at 30 June 2014, this matter was yet to be finalised.

Judicial scrutiny

A number of previously reported matters for 2012–13, involving the recovery of legal costs, continue to be pursued in the relevant jurisdictions. This includes the recovery of costs in three of the four Court of Disputed Returns matters that arose following the 2010 federal election.

Mr Mulholland and the Democratic Labor Party of Australia

The AEC continues to be involved in the legal action brought by Mr John Mulholland. Mr Mulholland has been involved in a dispute over who is the registered officer of the Democratic Labor Party of Australia (DLP) for the purposes of the conduct of federal elections.

The registered officer of a political party recognised by the AEC has rights and obligations under the Electoral Act, particularly in endorsing party candidates in a federal election.

Mr Mulholland had previously lodged an appeal to the Full Bench of the Federal Court of Australia from a decision of the Administrative Appeals Tribunal that Mr Anthony Zegenhagen had been validly substituted as the registered officer for the DLP. The Full Bench of the Federal Court dismissed Mr Mulholland’s appeal and awarded costs in favour of the AEC.

Mr Mulholland lodged a special leave application with the High Court of Australia to appeal against the Federal Court decision, and this was dismissed.

Australian Democrats

The AEC has also continued to be involved in legal action concerning who is recorded in the Register of Political Parties as the registered officer of the Australian Democrats.

The registered officer of a registered political party has several rights under the Electoral Act, including the right to nominate candidates to stand in a federal election (section 167) and the right to lodge group voting tickets (section 211) for the Senate.

The AEC has received the following applications:

  • on 21 December 2012, 28 February 2013 and 28 June 2013 – applications to substitute Mr Paul Morgan for the current registered officer, Mr John Charles Bell
  • on 29 January 2014 – application to substitute Mr Stuart Horrex for the current registered officer, Mr Bell.

All these applications have been refused and have been the subject of various applications for review to the three-person Australian Electoral Commission and the Administrative Appeals Tribunal.

Mr John Davey applied to the Administrative Appeals Tribunal for review of the decision on the applications concerning Mr Morgan. On 5 June 2014, Deputy President Constance of the Administrative Appeals Tribunal dismissed Mr Davey’s application on the grounds that he was the subject of a sequestration order under the Bankruptcy Act 1966 and the trustee in bankruptcy did not elect to continue the action (see John Davey v AEC [2014] AATA 355).

On 9 June 2014, Mr Hayden Ostrom Brown made a fresh application for review to the Administrative Appeals Tribunal seeking an extension of time to apply for tribunal review of the decision on the Morgan applications.

The application relating to Mr Horrex, of 29 January 2014, was rejected by the AEC on 14 April 2014. Mr Horrex has applied for review of that decision by the three-person Australian Electoral Commission. On 6 March 2014, Dr James Page lodged an application for review to the Administrative Appeals Tribunal claiming there had been a deemed refusal to make a decision on the application relating to Mr Horrex. Both matters remained current at 30 June 2014.

2013 Western Australian Senate election and the Court of Disputed Returns

During the recount of Western Australian Senate ballot papers after the 2013 federal election, it became apparent that 1 370 Senate ballot papers were missing and were not available for the recount. The missing ballot papers included 1 139 cast in the Division of Pearce and 231 cast in the Division of Forrest. Despite extensive searches, they could not be located.

When the initial count was conducted, AEC counting officials filled out fresh scrutiny sheets that clearly showed results from the missing ballot papers. The scrutiny sheets and results were then entered into the AEC’s elections management computer system. This meant that the AEC had computer records showing the preferences marked on all of the missing ballot papers. The AEC’s analysis found that the missing ballot papers affected the election result for the last two Senate positions.

AEC’s legal advice

The AEC sought urgent legal advice on whether the scrutiny sheets and computer records of the votes contained in the missing ballot papers could be included in a Senate recount under section 278(2) of the Electoral Act.

Initial legal advice was that these could not included primarily because the Electoral Act requires ballot papers to be physically examined at each stage of the count and scrutiny process. This is also a requirement of the Electoral Act for a recount. If results in the recount were solely based on records of earlier counts, scrutineers appointed by the candidates for the recount would be denied the right to physically examine and challenge the formality of the votes marked on the missing ballot papers.

Court of Disputed Returns petitions

The three-person Australian Electoral Commission authorised the Electoral Commissioner to lodge a petition with the Court of Disputed Returns under section 357 of the Electoral Act. The petition sought an order from the court that the WA Senate election of six senators be declared void. At key stages of the recount the margins that favoured the final two declared candidates were extremely close. The petition was therefore based on the premise that, because the 1 370 missing ballot papers could not be included in the recount, the election was likely to be affected for the purposes of section 362(3) of the Electoral Act.

Before this case there was no relevant precedent for the Court of Disputed Returns voiding a half Senate election in a state or territory under section 362(3) of the Electoral Act, thereby requiring that a new half Senate election be conducted.

On 15 November 2013 the AEC lodged a petition with the High Court sitting as the Court of Disputed Returns.1 As prescribed by the Act, the petition set out ‘the facts relied on to invalidate the election’ (section 355(a)) ‘specified with sufficient particularity to identify the specific matter’ relied on to ‘grant the relief’ being sought (section 355(aa)).

Three other petitions were lodged on behalf of candidates and political parties involved in the election of WA senators. The court dismissed one of the three additional petitions, as it failed to plead an ‘illegal practice’ (see www.austlii.edu.au/au/cases/cth/HCA/2014/1.html).

The amended2 AEC petition to the Court of Disputed Returns was published in the Australian Government Gazette No 2013G01952 on 20 December 2013 (see www.comlaw.gov.au/Details/C2013G01952).

Paragraphs 44 to 46 of the AEC petition dealt with the ‘illegal practice’ question that must be identified in any such petition. The details of the illegal practice were:

  1. The Australian Electoral Officer for Western Australia failed to conduct the recount of the Senate ballot papers as directed by the Electoral Commissioner under sections 278(2) and 279A, which was in contravention of subsections 18(3) and 20 of the Electoral Act. This failure was due to the non-availability of the missing 1 370 Senate ballot papers that were included in the recount order.
  2. The divisional returning officers for Forrest and Pearce failed to maintain the safe custody of the missing Senate ballot papers in accordance with section 393A(3) of the Act.

Decision of Court of Disputed Returns

The 18 February 2014 decision of the Court of Disputed Returns in Australian Electoral Commission v Johnston [2014] HCA 5 can be found at www.austlii.edu.au/au/cases/cth/HCA/2014/5.html.

In this decision the Hon Justice Hayne set aside the WA Senate election on the basis of an illegal practice. His Honour found that all of the three remaining petitions that challenged the Senate result in WA alleged that the loss of the ballot papers and the consequent failure to conduct the recount in accordance with the Act were illegal practices. His Honour concluded (at [59]) that:

‘It is not necessary to identify more precisely which provisions of the Act were contravened. It is sufficient to proceed on the footing adopted in argument that the loss of the ballot papers both constituted and occasioned one or more contraventions of the Act.’

His Honour did not make a finding on which individual person within the AEC was responsible for the loss of the missing ballot papers. He proceeded on the basis that the failure to have available at the recount all of the parcels of ballot papers that were subject to the recount constituted contraventions of the Act and thus were illegal practices (at [60]). This approach was consistent with findings in the Keelty Report that it was impossible to determine what had happened to the missing ballot papers.

His Honour also found that, under section 365 of the Act, the Court of Disputed Returns could not rely on the records of the fresh scrutiny and original scrutiny of the 1 370 missing ballot papers to determine whether it should declare any candidate duly elected who was not returned as elected following the recount. Section 365 of the Act places limits on the evidence that the court may admit to determine whether the result of an election was affected by certain illegal practices. If an elector has been prevented from voting in an election because of an officer’s error or omission then, under the section, the court cannot admit any evidence of the way the elector intended to vote in that election to help it to determine whether the error or omission affected the election result. This meant that the scrutiny sheets and computer records could not be admitted into evidence.

His Honour therefore rejected the mix-and-match approach of using the scrutiny sheet records with physical examination of the remaining ballot papers that was advocated in two of the three other petitions. The present terms of the Act do not allow for the AEC, the Governor-General or the Court of Disputed Returns to take into account the scrutiny sheets and the computer records of the votes contained on missing ballot papers. Therefore, a new election was the only outcome available.

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 other 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) 144 CLR 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 (see section 183). Organisations must lodge the required details for an election with the Fair Work Commission (see section 189). When that information is provided to the commission, the general manager of the 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 that 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] FCA 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 involved in one matter before the Federal Court in 2013–14 relating to the election of office bearers and the date for the close of nominations. In this matter there was a mistake in the material that was published advising members of the Master Builders Association of the Australian Capital Territory of the closing time for nominations for the election. The court ordered that a fresh election was to be held. The reported decision on this matter is Application of the Electoral Commissioner [2014] FCA 588.

Intermittent employees and payment of loadings

The AEC was the subject of an application to the Fair Work Commission concerning the interpretation of clause 23 of the AEC Enterprise Agreement 2011–2014. Mr Hugh Williams argued that, as an intermittent non-ongoing employee, he was entitled to be paid his loaded rate (which includes a casual loading of 20 per cent) plus the overtime penalty rates for work outside the spread of hours. The AEC argued that work outside the spread of hours only attracted the payment of the base hourly rate plus the appropriate overtime or penalty rate and not the casual loading. The Fair Work Commission agreed with the AEC’s interpretation of clause 23 of the agreement. This decision is reported as Mr Hugh Williams v Australian Electoral Commission [2013] FWC 6095.

External legal services

The AEC spent $839 495.52 on external legal services in 2013–14. Expenses included fees to firms on the panel of legal service providers, counsel fees, court costs and miscellaneous charges. This was an increase from the $447 499 expended in 2012–13. The increase was mainly due to:

  • the number of matters involving disputes over the eligibility of candidates to nominate for positions in registered industrial organisations under the Fair Work (Registered Organisations) Act 2009
  • challenges to decisions relating to the registration of political parties and their registered officers
  • litigation relating to the conduct of the 7 September 2013 federal election.

Public scrutiny

Freedom of information

Agencies subject to the Freedom of Information Act 1982 (FOI Act) are required to publish information for the public as part of the Information Publication Scheme (IPS). This requirement is in Part II of the FOI Act and has replaced the former requirement to publish a section 8 statement in an annual report. Each agency must display on its website a plan showing what information it publishes in accordance with the IPS requirements.

As an agency subject to the FOI Act, the AEC publishes this information on its website and updates it regularly.

Customer enquiries, issues and complaints

The AEC receives enquiries and feedback from the public and other stakeholders by telephone, email, social media, facsimile and post, and in person.

In 2013–14 the AEC received over 36 000 phone calls, over 63 000 emails and around 6 000 in-person contacts from the public during non-election periods.

During the 2013 federal election the AEC’s election contact (call) centre received more than 560 000 phone calls and 42 000 emails. During the 2014 WA Senate election the contact (call) centre received more than 36 000 phone calls and 1 500 emails.

A central register is used to capture the nature and details of non-election public enquiries. Any that cannot be immediately resolved are forwarded to the relevant AEC business area or escalated to the appropriate manager. Complaints about possible electoral fraud are managed according to the AEC’s Fraud Control Policy and framework.

In recent years the AEC has implemented a range of measures to improve the consistency and transparency of enquiries and complaints handling including the introduction of the central public enquiries register. In 2013–14 the AEC also revised its customer service charter and related public engagement documents, including its complaint management policy. The new charter and policy will take effect in 2014–15.

More information on AEC customer contact services, including accessible service options, are provided in ‘Report on performance’, Programme 1.3 Education and public affairs.

  1. The timeframe for lodging a petition is 40 days after the return of the last election writ (see section 355(e)(ii) of the Electoral Act). The last writ for the 2013 federal election – the WA Senate writ – was returned on 6 November 2013, making the deadline for petitions 16 December 2013.
  2. The AEC petition was amended pursuant to an order made by the Hon Justice Hayne on 13 December 2013, to correct a number of numerical figures concerning the outcome of the count.