Annual Report 2014–15

4Governance and compliance

Legal compliance

The Legal and Procurement Branch is responsible for the management of the AEC’s administrative and judicial compliance. The Office of the Commissioner ensured parliamentary compliance, providing support services to the Australian Parliament and the Special Minister of State.

Overview

The AEC’s management of legal compliance consists of the provision of legal services (both in-house and external), in addition to internal and external compliance processes that encompass administrative, judicial and parliamentary scrutiny. These can include legal action, responses to matters concerning human rights, providing evidence to parliamentary committees and complying with activity reports prepared by the ANAO.

In 2014–15 the AEC’s Legal and Procurement Branch were responsible for legal services, commercial law and procurement. In addition to providing advice on all legal matters, it provided advice on the operation and effect of provisions in the Electoral Act and the Referendum Act.

External legal services, such as counsel fees and court costs, were significantly reduced in 2014–15 which is not unusual for operations within the relevant phase of the election cycle.

Administrative scrutiny

A range of platforms ensure that the AEC’s administrative processes and responsibilities remain publicly accountable and transparent. Both individuals and organisations may lodge queries or complaints with:

  • the Administrative Appeals Tribunal, under the Administrative Appeals Tribunal Act 1975
  • the Commonwealth Ombudsman, under the Ombudsman Act 1976
  • the Privacy Commission, under the Privacy Act 1988
  • the Australian Information Commissioner and the Freedom of Information Commission, under the Freedom of Information Act 1982
  • the Australian Human Rights Commission, under the Human Rights and Equal Opportunity Commission Act 1986.

Judicial scrutiny

A number of new matters involving the judicial review of AEC decisions were launched in the 2014–15 period.

External services

The AEC spent $546 806.07 on external legal services in 2014–15. Expenses included fees to firms on the panel of legal service providers, counsel fees, court costs and miscellaneous charges. This was a decrease from the $839 495.52 expended in 2013–14. The decrease was mainly due to a reduction in legal work associated with a federal election, including the conclusion of the AEC’s petition to the Court of Disputed Returns in the 2013–14 period.

Administrative scrutiny

The administrative practices and decisions of the AEC are subject to a number of pieces of legislation, outlined in Table 9.

Table 9: Guiding legislation
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 have unlawfully discriminated against an individual.

Relevant reports and reviews

Administrative Appeals Tribunal

The AEC 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. There were four related matters before the Administrative Appeals Tribunal (AAT) during this period (including the deregistration of the Australian Democrats party).

Matters relating to registered officers of registered political parties

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.

On 6 March 2014, Dr James Page lodged an application for review to the AAT claiming there had been a deemed refusal to make a decision on the application to have Mr Stuart Horrex substituted as the registered officer of the Australian Democrats (2014/1195). This application was dismissed by the AAT on 25 July 2014 as the applicant had misconstrued the operation of section 134 of the Electoral Act.

On 9 June 2014, Mr Hayden Ostrom Brown made a fresh application for review to the AAT seeking an extension of time to apply for tribunal review of the decision not to substitute Mr Paul Morgan as the registered officer of the Australian Democrats (2014/3024). The previous application for tribunal review — made by Mr John Davey — had been dismissed by the AAT on the grounds the applicant 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). Mr Ostrom Brown withdrew this application on 1 August 2014.

On 29 July 2014, Dr James Page lodged an application for review of a decision on 25 June 2014 by the (three-person) Electoral Commission (2014/4022). This decision 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. In a decision dated 17 September 2014, Deputy President Hack SC decided that only Mr Horrex should be the applicant and Mr Bell be joined as a party.

Deregistration of the Australian Democrats

On 16 April 2015 pursuant to s.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. The AEC advised the AAT of this matter and on 27 April 2015 the AAT vacated the hearing dates set down for May 2015 and adjourned the matter pending any hearing and determination of proceedings arising from the deregistration of the Australian Democrats.

On 14 May 2015 Mr Darren Churchill and Mr Roger Howe, as National President and National Secretary of the Australian Democrats, respectively, made an application to the (three-person) Electoral Commission for an internal review of the decision to deregister the Australian Democrats.

On 5 January 2015, Dr James Page lodged an application with the AAT for a review of the decision not to withdraw a notice — issued to him under s.318(2) of the Electoral Act — seeking certain particulars relating to the annual return for the Australian Democrats (2015/51). The AAT dismissed the application for lack of jurisdiction.

Further matters before the AAT

The AEC also had two further matters before the AAT during this 2014–15.

The first of these was an application by the Liberal Party of Australia seeking a review of the decision by the AEC to allow the Liberal Democratic Party to register the abbreviation ‘Liberal Democrats’ (2013/6987). A hearing on the matter was scheduled for September 2015.

The second was an application by Mr Cordover seeking a review of the AEC’s refusal of an FOI request for the source code of the computer system used to count the votes in Senate and other elections (2014/3361). 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.

Australian National Audit Office

The ANAO provides quarterly audit activity reports to the BAC.

Following the 2013 federal election, the ANAO foreshadowed three 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. Of those, Performance Audit Report No. 31 2013–14 was tabled in 2013–14. Audit Report No. 4 2014–15 Second Follow-up Audit into the Australian Electoral Commission’s Preparation for and Conduct of Federal Elections was tabled in November 2014. The remaining audit, Third Follow-up Audit into the Australian Electoral Commission’s Preparation for and Conduct of Federal Elections, commenced in March 2015 and is expected to be tabled in the Australian Parliament in the 2015–16 financial year. During 2014–15 the AEC continued to implement report recommendations from the first two audits.

Commonwealth Ombudsman

The AEC responded to three issues referred to the Ombudsman during 2013–14 that were finalised during this period.

One of these matters involved a complaint about the handling of ballot papers. This matter was finalised with no finding of administrative deficiency against the AEC.

Two other matters involved accessing the electoral roll for non-electoral purposes. One of these matters was finalised with the Ombudsman advising the AEC to amend its website. The website has since been amended. The other matter was finalised with the Ombudsman advising that access should be granted to the applicable policy. The AEC has reviewed its access to the electoral roll policy and the request would now come within the policy.

Australian Human Rights Commission

On 31 March 2015 the Australian Human Rights Commission (AHRC) advised the AEC that a complaint had been made against the agency. The complaint stated the AEC’s website was inaccessible to a person who was blind and that AEC staff were not helpful in resolving this issue. Further, the complaint was that the AEC discriminated against the complainant and was in breach of its obligations under the Disability Discrimination Act 1992.

The AEC sought to conciliate the matter under the auspices of the AHRC, however the AEC and the complainant were not able to come to an agreement. On 16 July 2015 the AHRC terminated the complaint as there was no reasonable prospect of the matter being settled by conciliation.

Judicial scrutiny

Access to the electoral roll

On 24 July 2014 Mr Robert Gardner filed an application with the Federal Court under section 39B of the Judiciary Act 1903 seeking unrestricted access to inspect the electoral roll (VID 419 of 2014). On 2 December 2014 Mr Gardner filed with the Court a Notice of Discontinuance by consent of the parties that there be no order as to costs. The AEC has since reviewed its access to the roll policy and Mr Gardner’s request would now come within the policy.

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) 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 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] 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 a party to three proceedings before the Federal Court during this period in relation to industrial elections.

On 5 September 2014 Ms Diana Asmar filed an application for an inquiry into alleged irregularities in respect of the Health Services Union Scheduled Election 2014 Victoria No. 1 Branch (VID 522 of 2014). The alleged irregularity was that the AEC had accepted the nominations of two candidates for the election when it should not have done so. The Court ordered the AEC’s acceptance of the nominations was void. See Asmar, in the matter of an election for office in the Victoria No 1 Branch of the Health Services Union (No 2) [2014] FCA 1113 (21 October 2014).

On 8 October 2014 Mr Mark Walker filed an application for orders that the Court institute an election inquiry into the current election for Branch Secretary of the Victorian Branch of the Australian Rail, Tram and Bus Industry Union (VID 580 of 2014). The Court heard the matter on 9 October 2015 and the application was dismissed. See Walker, in the matter of an election for an office in Victorian Branch of the Australian Rail, Tram and Bus Industry Union [2014] FCA 1109 (9 October 2014).

On 2 June 2015, Mr John Herbertson filed an application for orders that the Court institute an election inquiry into alleged irregularities in the conduct of the 2015 Australian Manufacturing Workers’ Union election for the Vehicle Division National Divisional Secretary (VID 290 of 2015). The Court held an inquiry and ordered that a new election be held between two specified candidates. To date there are no published reasons for the judgement.

Parliamentary scrutiny

The AEC is accountable to the Australian 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.

Joint Standing Committee on Electoral Matters

The Joint Standing Committee on Electoral Matters (JSCEM) continues to be the central point for parliamentary consideration and debate on electoral law, administration and legislative reform. Through this process, the AEC can provide recommendations to the JSCEM for consideration that may inform legislative change. In 2014–15, the AEC provided a technical advisor to the JSCEM to support its inquiries.

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

The JSCEM tabled two interim report and a final report.

In 2015 the JSCEM completed its inquiry into the conduct of the 2013 federal election. Over the course of the inquiry the AEC made 11 submissions and appeared at 10 public hearings.

The JSCEM’s first interim report on senate voting practices was tabled in the 2013–14 financial year.

The Second interim report on the inquiry into the conduct of the 2013 federal election: An assessment of electronic voting options was tabled on 20 November 2014. It contained seven recommendations which were unanimously supported by the committee.

On 15 April 2015 the JSCEM tabled its final report, Report on the conduct of the 2013 election and matters related thereto, following two interim reports tabled in May and November 2014. The final report contained 24 recommendations. There was a dissenting report from the Labor and Greens committee members in which they rejected the recommendations to introduce a Federal Direct Enrolment and Update (FDEU) confirmation process and voter identification.

As at 30 June 2015 the Government had not responded to the three reports.

On 23 June 2015, the then Chair of JSCEM issued a media release announcing two further inquiries, focussing on the delivery of electoral education and campaigning activities and conduct at polling places.

Services to the Australian Parliament

In 2014–15 the AEC provided support services to the Australian Parliament, and to the Special Minister of State, on the administration of the Electoral Act and the Referendum Act. The Special Minister of State referred 125 letters to the AEC for input. Major themes included preferential voting, the Senate voting system, and issues relating to enrolment. The AEC also provided briefings to the Special Minister of State and support for Question Time and Senate Estimates hearings.