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Joint Standing Committee on Electoral Matters
Conduct of the 2013 federal election and matters related thereto
- Parl No.
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Joint Standing Committee on Electoral Matters
CHAIR (Mr Tony Smith)
Macdonald, Sen Ian
Griffin, Alan, MP
Kroger, Sen Helen
Rhiannon, Sen Lee
Back, Sen Chris
Hawke, Alex, MP
Ruston, Sen Anne
Smith, Sen Dean
Goodenough, Ian, MP
Tillem, Sen Mehmet
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Content WindowJoint Standing Committee on Electoral Matters - 05/03/2014 - Conduct of the 2013 federal election and matters related thereto
KEELTY, Mr Michael, Private capacity
Committee met at 10:02.
CHAIR ( Mr Tony Smith ): I declare open this public hearing of the Joint Standing Committee on Electoral Matters into the 2013 federal election. This inquiry was referred by the Special Minister of State on 5 December last year, to look at all aspects of the 2013 federal election.
At the last public hearing on this matter, the committee requested that the Auditor-General conduct a follow-up audit on the implementation of his 2010 recommendations. The Auditor-General has agreed to the committee's request in this regard.
I now call Mr Mick Keelty. As you would be aware, although the committee does not require you to give evidence under oath, I advise that this hearing is a legal proceeding of the parliament and therefore has the same standing as proceedings in the respective houses. Welcome, and I ask you to make an opening statement.
Mr Keelty : First of all, can I say that I am aware that you had tried to get me here earlier but I was engaged overseas at the time. So thanks for your patience in waiting for me to come back.
I have not specifically prepared an opening statement. I have rather chosen to allow the report to stand for itself and to maximise the time for your committee to ask me questions about the report.
Obviously, there has been some movement since the report was delivered. We have had the Griffith by-election, we have had the decision from the High Court sitting as the Court of Disputed Returns and we have had the Australian Electoral Commissioner announce that he is standing down, and also the West Australian state manager make a similar announcement. So a lot has happened since the report was originally delivered.
CHAIR: I might start with a few opening questions. Your report is a very detailed report and, as you rightly point out, in our first public hearing we spent the best part of a day dealing with the detail of it. Could you perhaps just tell the committee about the process of your appointment by the former commissioner?
Mr Keelty : I was contacted by the commissioner and asked to do the inquiry. I was aware of the urgency of it. I had been engaged by the Queensland government at the time, doing a different inquiry—
Mr Keelty : and so I did not think I was available to do this. As I understand it, he also asked a retired judge to undertake the inquiry. I think, really, the issue for me was that there were competing time lines. I think the Court of Disputed Returns had begun, or was about to receive petitions. So there was some urgency about getting the matter done.
I only put that there to say that I understood the time lines that I needed to work to. The commissioner asked me to come down and receive a briefing. I suggested that the AFP be involved in the briefing, because I was totally unaware of what went wrong and whether any criminal action had taken place. So the AFP sent a senior officer down to sit through the briefings with me. We came to the conclusion, and they made the decision, that unless criminal activity were identified the AFP would take a step back and wait for me to conduct the inquiry.
So, having received the briefings I then drew up an order of things to be done. Obviously, the most urgent thing was to go across to Western Australia and speak to the people in the office in Western Australia, and also the people involved in the transport of the ballot papers.
CHAIR: Having read your report—and we have been through it in great detail—it is fair to say, isn't it, that as soon as you began that process you started to identify a smorgasbord of flaws. Is that a fair summation?
Mr Keelty : Yes. I should point out that I received full cooperation during the inquiry from all of the employees of the Electoral Commission. But I also received full cooperation from the private sector, such as the couriers. Just in case somebody has a residual doubt whether there were powers actually to conduct this thing: it was conducted in a voluntary capacity, and everybody was very forthcoming. But you are exactly right: not having had a background in this and, obviously, sitting in a room where people are very experienced in all of this, there were things that really started to unfold, such as the accountability of the ballot papers. I was so surprised at the outset that in a world where we can track parcels from one side of the world to the other that we do not track these parcels.
CHAIR: And you made that point about the lack of a tracking system. In fact, I think it was suggested.
Mr Keelty : Yes, it was offered by Toll, to implement a tracking system. I think that is indicative of one of the problems, and that is that the Perth office of the Electoral Commission had that offer made to them. Understandably, they referred the offer to their central office and, of course, ITC Security, and while they were deliberating on that the election had to get going. So they lost a considerable amount of time in being able to take advantage of that.
Having said that, while I was in Perth for the inquiry there was a meeting of electoral commissioners from around Australia. I think that everybody is grappling with this problem of—if I can say—how we get a result on the day and keep the accountability of the ballot but not, as the legislation provides, associate an individual with their own ballot paper as is the case in some other jurisdictions.
CHAIR: I will go back a step and ask you a couple of general questions. Before we get into the technical aspects of this, this went wrong right from the start, didn't it? You make clear in your report the very first step before the election, as you point out on page 5, is:
Guidelines are established to give direction to all staff and volunteers during an election. Given the infrequency of elections, it is necessary that clear and accurate guidelines are written and distributed to all personnel participating in the operation.
This did not occur in WA.
Mr Keelty : That is correct. The material I read was so ambiguous and unclear it really was hard to understand how anybody could follow it. What that also highlights is that there are such a large number of volunteers—70,000-odd volunteers—who come and supplement the staff of the AEC that those guidelines need to be absolutely clear to people who are unfamiliar with the electoral process, unlike the 850 AEC staff.
CHAIR: I will briefly run through some of what you found. That was perhaps the first thing you found. You then discovered that there was a very clear system for how to treat ballot papers, but this was not followed properly in the circumstances. There is a clear procedure for how to transport votes, and on at least one occasion the votes were transported in an open truck, right through to their delivery to the counting centre. Then there was the way they were stored, next to rubbish and the like. It leads you ultimately to the conclusion that there were so many things that went wrong that you would only be guessing about what really happened. They might have been literally thrown out with the rubbish or they could have fallen off the back of a truck. There are four or five possibilities.
Senator IAN MACDONALD: They could have been deliberately taken.
CHAIR: But you cannot tell, because there are so many things that have gone wrong. You have had a long career in the Public Service. You went across there obviously knowing that there was a big problem. But were you shocked, frankly?
Mr Keelty : I have learnt a lot doing this. There were some aspects of it that did not surprise me. They are the cultural aspects.
CHAIR: I was about to get to that.
Mr Keelty : Having had the experience I have had in a national organisation with a presence in WA—and I need to take care here; this is not being derogatory of our colleagues in Western Australia or Far North Queensland—there is a significant difference in the culture of the office and what drives the people that I saw here in the Canberra office and what drove the people over there. I have got to say that I was relieved to see that the state manager stood down, because, in my view—and this is not about individuals; it is not about having a go at individuals—there was a lack of understanding about the import of this, about the significance of it. Whilst the High Court has only just recently made its decision, to me, as a fresh set of eyes, this is a multimillion-dollar expense but also the practical issues of opening the polling booths when there is no national general election—the polling booths just for the people to vote for the Senate of Western Australia, who may not be in that state at the time. It was just simple things like that, logistical things, that nobody seemed to have the understanding of the import of. That really worried me. I think there was poor leadership.
I have done a lot of reviews. In fact, in Western Australia I have done two bushfire inquiries. I have just finished a review of the Crime and Misconduct Commission in Queensland and a review of the police and emergency services in the Bundaberg floods in Queensland last year, and I know this from my own policing experience too. Where things fall down is where clear guidelines and clear accountability are not known by the individuals who are participating. You hit the nail on the head: I think, essentially, that was the mistake that happened. They did not comply with what the head office was imposing. Some of the larger states—but without the geographical distance—had been dealing with this sometimes because of the volume—
Mr GRIFFIN: What you are saying is that you think the problems that occurred here particularly occurred in Western Australia, or in outlying areas, so you do not think this is an issue for most parts of the country?
Mr Keelty : I really cannot say that because I have not looked at the other states. But it occurred to me that—and you are all more experienced in this than I am—had the recount not been called would the mistake have been discovered? I think that is sitting in the back of my mind.
Mr GRIFFIN: The other point about that is given how close the election result was, we may well have been at the Court of Disputed Returns and we may well have been facing an election anyway, regardless of the issues around the recount. That is the truth of it.
Mr Keelty : Exactly, and I totally agree with you. But what happens in other places where maybe it is not so close? But if you are talking about 1,370 votes missing, that can, obviously, as we all know, change the outcome.
CHAIR: You point out at the start of the report that the contract for transport had expired in July 2013. You then go on to say—and this is not clear—what significance that was in all practicality. Weren't you shocked that there was not a transport contract in place for the only six months when an election could be held?
Mr Keelty : I have got to agree with you. That is what I am saying about the cultural aspects. To me, whilst we might not know the exact date—and, as I say in the report, it is up to the government of the day to decide the exact date, and that has been the practice forever—to not have a contract in place for transport shows an attitudinal problem to accountability that really was worrying to me. That would be one of the first things you would put in place apart from acquiring the premises to do the counting and the recounting. It was a good example of where things were going wrong because of the attitude towards the contract—'because we knew Toll, and we knew Toll would continue on providing the service'. In no way do I denigrate Toll here. From what I saw of Toll's operations, they were absolutely first class. They did make the offer to provide their modern system, which was not taken up. In this day and age, to not have that contract in place—in the private sector it would not happen. I would hope that in other areas of the public sector it would not happen.
CHAIR: You are contracted by the AEC; you get a briefing; at what point did you see these photos of the state of the recount?
Mr Keelty : Deputy Commissioner Tom Rogers had been over the week prior and, I think, had a role—I am speaking third-hand here—in recommending inquiry. In the early briefings that he gave me, I think we both concluded that there is no way to sugar coat this. This is a disastrous outcome. It is such a shame—
CHAIR: So he showed you pretty much straight up that he—
Mr Keelty : I have to say that I did not understand the import of these things. I draw your attention to some of the photos. For example, if the committee have annexure 13 on page 79 in front of them, at the bottom of that page is the photo of a gentleman who is immaterial to my inquiry, except to say that that gentleman is dealing with state election material. I understand the practicalities and costs associated with having a good venue for these things. You have all probably been there. When you were kids you were probably scrutineers! When you actually see the warehouse counting operations, it needs to be pristine. To have two operations running out of the same centre—
CHAIR: When you saw those photos you must have been—
Mr Keelty : Going back to Senator Macdonald's point, you could easily imagine the money involved with some of the parties. The importance of the Senate in the last couple of decades—as an outsider—has grown immeasurably. So if you foul up the outcome, it matters. Think about the people who are involved in this. We are talking about people who are low-income earners. I am not being disparaging, but I am saying the opportunity for something corrupt to happen is there. I have no evidence of corruption here whatsoever, but the problem is that I cannot hand on heart stand here and say that it did not happen, because the system was so parlous.
CHAIR: Because the rooms were open right from go to woe. When you look at the photos that you have put in the report—and I think we all commend you for putting them in the report because the photos do tell a story—they are the electoral equivalent of an air crash investigation, aren't they?
Mr Keelty : That is right. People were describing to me the plastic wrapping around the pallets. But, if you recall from the early part of the report, consignment notes were at the pallet level. You can see in the photos that there are a number of pallets. The consignment notes did not say how many boxes should have been on each pallet. You will see in the report that I refer to what is commonly known as a Russian doll. As boxes were used and reused and packed and repacked, they had different polling stations and party outcomes in them. The whole thing is like a Russian doll, so you need to preserve the containers. Coming from an investigations background—where we have so much effort around the continuity of exhibits, forensic examination and being accountable for things—this really surprised me.
Again, I suppose you know better than I would, but so many elections have happened and so many elections appear to have gone well, so it is hard to strike a balance with this; this was a disaster.
Mr GRIFFIN: There is no doubt that it was, but I guess it is the old story that when something is close you are always going to have issues, and the question is what those issues are. You always find problems when you are reviewing things after the event. Following on from a couple of comments you made earlier, I want to go to some of the cultural issues and the nature of how systemic they were. Again, I do not want to apportion particular blame within the AEC, but I do want to get a sense of the directions that came from the central office in Canberra out to the states and what occurred within those states. I understand from what you have said that your focus was Western Australia. In simple terms, I am asking: how much fault was there on the part of the AEC at a national level versus the amount at the state and local levels. Further to that, can you expand on the comment you made earlier about other states and how that may have an impact?
The other thing is about, given your mention of the electoral commissioners meeting recently, whether you can comment at all on the question of states conducting elections versus the AEC.
Mr Keelty : Just going back to the beginning, there are procedure manuals that are sent out from head office here. My terms of reference to not require me to go through those, but I understand the system is that those procedure manuals go out to every state and then states will localise. It is a very organic practice, as I said in the report. Some of you would be aware that people put things in the back of their ute and drive home at night. It will stay in their ute until the next day and the fresh count. In remote areas of Australia, one ute will meet up with another ute. That is the way we have done it. By and large, it has been successful. But there are procedure manuals that come out from head office and then they are put into local effect. Local bulletins are written for the individual circumstances of each division and polling station. That is where it broke down in this case in Western Australia. I did not look into other states; it was not part of my terms of reference. But certainly regarding the case in Western Australia the higher level policy is in place. It was a problem with the lower level policy, because it simply just did not exist.
The chair was talking about the photos in the report. There was something else I included in the report. The first thing you do when you are running an inquiry is go back to the instructions or the documents under which people were operating. If you go to annexure 3 you will see the plan for the recount. How anybody is able to reconcile that and give it to people to comprehensively understand and deliver an outcome on for voters and for parliament simply defies logic. There are photos on the next page that exemplify it. The high-level stuff is okay. Where this fell down was at the local level.
Mr GRIFFIN: So it is implementation down the line?
Mr Keelty : Yes.
Mr GRIFFIN: I do not think you specifically reviewed this element in detail but what I think you are saying is that, from what you saw, the advice coming down from the AEC at a national level on what needed to be done was fine; the question was about the implementation at the local level and arguably what reviewing of that administration at the local level was taking place up the line?
Mr Keelty : That is correct. It became clear to me that some states through the expertise of individuals in those states operate clearly and significantly better.
Mr GRIFFIN: So essentially there is a lot of influence at the local level from the state office down around the question of how things are done.
Mr Keelty : In fact, a good comparison is the New South Wales and Western Australian Senate elections, because they both had a similar sized ballot paper. We did not see anything like the problems that Western Australia had in New South Wales, yet they had the same logistical issues, which are a problem. It is not for me to say, but I suspect you are going to have an even bigger problem next time around because I suspect the number of candidates will not be limited to those from last time.
Mr GRIFFIN: Do you think there is the capacity to implement procedures on a local level nationwide, from an administrative perspective, given the vagaries in ability and experience that will occur depending on whereabouts in the country you are?
Mr Keelty : Yes, I do, as long as the right people are in place. I have to say that this is not specific to the AEC. From my own experience in other agencies, including my former agency, I think it would be very healthy to rotate senior staff so that they have experience in the eastern states and can look at what is happening in the western states and vice versa. It is not about the individual; it is about the individual level of experience. One of the things that did surprise me here and is common to some government departments was that there were a lot of people I came across who have had their entire career in the Electoral Commission. There is nothing inherently wrong with that except to say that the diversity and the opportunities to grow in your own skill set are very limited.
Mr GRIFFIN: One of the things that makes the Electoral Commission extremely unusual is that, as you mentioned, you have a permanent ongoing staff of only—
Mr Keelty : Eight hundred and fifty.
Mr GRIFFIN: but then, come election day and the period around it, you are talking 70,000. There are an awful lot of people there who are essentially, if not voluntary, extremely casual and extremely rarely engaged in the actual process. When we are talking about the question of the key level with regard to the administration, we are talking state officer, time staff and middle management.
Mr Keelty : That middle management level is where there are operations managers—people who drew these up. That is where the change needs to occur. They did let themselves down. It is not about persecuting people. I think they know they let themselves down. When it works well, as you said, nobody worries about it. Think about the life of these ballot papers: for six years nobody bothers to see them. You go in a warehouse, and they are way up on the top deck somewhere. Nobody is going to dust the dust off them.
Mr GRIFFIN: It is a bit like coppers, isn't it—it's only a problem when you need them!
Mr Keelty : I am so far away from the police now that it does not matter.
CHAIR: Alright, let's keep moving. We have a lot of questions. Senator Kroger.
Senator KROGER: I will be very quick because there are a lot of us around this table. There are two issues you have raised and one you have raised before, which is culture. In your submission you have said that there is a problem with culture? How do you fix that across the board? This is not the first time there have been issues raised in relation to the AEC. I hope it is the last in relation to something like this. How do you fix it at the level of middle management and above? Give your experience in the force, you have dealt with huge cultural issues in your own domain. How do you deal with such an issue here?
Mr Keelty : In my experience it will be through leadership and development of staff outside of the environment in which they are working so that they are stimulated. I mentioned in the opening Star Track Express or any of the ones you want to think of. We all know they track parcels around the world, so why didn't anyone say, 'Hey, shouldn't we be tracking these a little bit better now?' As the problems become harder—more people on the electoral roll, larger ballot papers—one would think that we would need to think about how to deal with the logistics. Some companies actually call themselves logistics companies. You see it on the side of their trucks on the highways. Everybody now is attuned to the fact that there is a better way to do business. I suspect it went wrong because of a lack of stimulation of some of the management staff who were not good leaders.
Senator KROGER: To follow up on that point: if you buy something on eBay, you have a number you can track to show what part of the world it is in. It is very easy. So why has that initiative not been undertaken? Is it because those sorts of decisions are allowed to be undertaken at a local level and there is not central coordination? What concerns me is what is happening in New South Wales, Queensland and Victoria. We have the spotlight on WA here but may well have the same issues in other areas. As you have said, who knows whether votes have been lost? We have no way of knowing that and, by your inference, probably has happened before.
Mr Keelty : If I were honest I would say there were a lot of people sitting around while this inquiry was underway, saying, 'There but for the grace of god.' We have to keep a balance around this. To answer your question: changing the culture will be through leadership and through rotating staff. A lot of staff have been there for a very long time and have not had much movement, so they are used to doing things the way that they have been doing them. With regard to your point about ordering things online and tracking them, one of the things that I picked up from the AEC staff is the adherence to the legislation in the sense of not associating a voter with their ballot paper. Bar coding ballot papers was ruled out, but it does not mean you cannot bar code the boxes, whether it be the polling place box or after the first count in the order of whatever party it is so you can track it that way. Anything that leaves the polling centre can be tracked at least on the outside so you can see where it went missing. That was the thing that really was hard about this: you could not see where it went missing. So, if it was foul play, you could not work out where it was. I would like to come here and say, 'I conducted a thorough inquiry, and my conclusion is that the ballot papers were accidentally thrown out with the rubbish.' I cannot honestly say that, because the systems simply were not good enough to enable me to establish that.
Senator RHIANNON: I will follow on from Senator Kroger's question. The cultural change issue comes up a lot, and you have spelled out very clearly the need for clearer leadership and the development and rotation of staff. Could you expand on that a bit? It is coming through very strongly, but is it an issue of leadership having the capacity, or is it also an issue of resources? Are resources needed there to assist the leadership in taking these recommendations forward? Is there something else?
Mr Keelty : I think that, by using what is available in the private sector, the technical capability to improve the flow could be a cost matter. Having done a couple of bushfire inquiries and having done this, I know that, when you have 70,000 volunteers, no government can afford it. It is like bushfires. No government can afford the volunteers we have, so we want to encourage them to stay. Plus it is great that the community owns our election. It is fantastic.
So I think the answer to your question is it is about leadership. It is about effecting change. One of the things I noticed the acting commissioner has done is that he has moved one of the other state commissioners across to WA for the upcoming election. I think they did some changes for the Griffith by-election as well. Every company does it. They will move somebody from one part of the company to another part of the company just to get a fresh set of eyes and say: 'We don't do it that way. We do it this way.' It is just good management practice.
Senator RHIANNON: You said earlier that some states work better than others. What examination did you make of other states, and what states were they?
Mr Keelty : I really only had a cursory look at New South Wales by talking to their state manager. I talked to him about some of these things as I was doing the inquiry. He was very honest with me and said, 'We all cringe about this stuff because, when you have such a complex arrangement, you're in the hands of the worst performer.' I do not want to denigrate anybody, but your worst performer is the one who is going to bring you undone in the chain of events. Everybody was nervous about this.
Senator RHIANNON: Do you mean nervous before election day?
Mr Keelty : No, when this was discovered—there but for the grace of God. It is very Australian to have a ute pull up in a place in the middle of the night and throw boxes from one ute into another ute. There is probably no other way to do it. The Electoral Commissioner was describing to me how in the UK general elections they were observing cars pulling up to the counting point. Of course, when you have thousands of cars coming from hundreds of polling booths, the cars could not make it to the central point. So, everyone just parks their car, opens the boot, pulls the boxes out of the boot and a human chain delivers the boxes in. I don't want to break this process—it works; it works well; it works on trust, but it needs to be lifted into 2014. It is a century-old system for 2014.
Senator RHIANNON: Why was there less rigorous handling of Senate ballot papers, compared with House of Representative papers? What were your suggestions about that?
Mr Keelty : At the end of the report I say that every ballot paper needs to be considered live until the end of six years. So, it should be considered sacrosanct and accounted for. It was raised with me that on the night of an election—I am talking to you about your business—there is a real rush to get House of Reps figures out. As we get more people on the electoral roll—there are currently 14.5 billion people—that rush has got bigger, and the expectation has got bigger and bigger. Because the Senate does not get into gear for another six months—they are not my words; I have absolute respect senators—there seems to be a culture that it is not such an important thing to get straight on to.
Senator RHIANNON: Is that part of the problem?
Mr Keelty : I think it is, yes.
Senator KROGER: Did I hear correctly when you said that the Senate does not properly into gear until 1 July?
Mr GRIFFIN: There is an argument that the Senate is never in gear. The question is more about the issue of how close an election might be. If you like, there is an old saying in the AEC— having a marginal seat, I have had it said to me by a number of divisional returning officers—that 'We do not care who wins as long as it is not close.' Whereas you might have a look at it House of Reps seat on the day and you can have a pretty reasonable guess about whether it is going to be a close one and you can certainly tell the night whether it is close, but with the Senate you will not know for some time.
Mr Keelty : That is right but one of the things I noted with this, without singling out individuals, Antony Green on his blog actually highlighted how close this Senate vote was going to be.
CHAIR: He did that in his evidence as well.
Mr Keelty : That is what worried me. If you knew what the outcome was going to be or had an idea of what the outcome was going to be you could interfere with the process to undermine it. As I have said, I have no evidence of that.
CHAIR: That is the point I was trying to make.
Senator BACK: Mr Keelty, you have been concentrating on the middle managers. My own observation at the local level has been that in the past returning officers were relatively easy to access because they were well remunerated and consistent over time—usually principals will deputy principals of schools in country towns. I looked after one area at Kalgoorlie. Did you have the opportunity to speak to people who were in charge of polling booths and their casual staff? I ask that because my observation is that there can be a very high degree of ignorance about scrutineering process. After 6pm people did not know—though the returning officer may have had a fair awareness—about the process. I saw that in different locations. Senior middle management may or may not have fallen short of their obligations, but if those who have responsibility at the polling places do not understand their role, responsibility and governance and cannot convey it to their subordinates then we really are in the situation we have found ourselves in. Can I get your reaction to that?
Mr Keelty : I did not go to polling stations—obviously, the election had finished—but what I did do was interview some of the scrutineers, and the situation that you have just described would seem to have prevailed. Scrutineers were saying they did not know what they were doing there, but they had to be there. It seems that in a number of places there was a lot of confusion about what their role was. They just had to physically be there, physically fill a spot. To specifically answer your question, no, I did not get a sense of that from anybody I interviewed, but that is because we did not go there.
Senator BACK: Certainly as a scrutineer I had people asking me what should be done and I am sitting back saying, 'It's not for me to tell you.' But, clearly, if they were asking a scrutineer then they did not know.
Mr Keelty : One of the things I did pick up which goes to what you are saying is that 'it's beer money', that 'mates get mates into it'. It is not to say the system does not work, but it could work better.
Senator BACK: The after-tax take-home pay does not make the 12 or 14 hours worth it—that was a comment made to me consistently.
Mr Keelty : Exactly. The point I made in the report is that at the most crucial part of the day, when things were opened and started to be counted, these are the people—you know them—who have been standing outside in the blazing sun all day working for their particular party and then they come inside and start working on the most important part of their day.
Senator BACK: Well, they oversee what is going on; they do not actually do it.
Mr Keelty : Yes.
Mr HAWKE: I have a couple of questions on a different line of inquiry. You stated in your report and here today that you have not found any evidence of any criminality or anybody acting in a criminal fashion in your inquiries.
Mr Keelty : That is correct.
Mr HAWKE: But you have considered that option in your inquiry?
Mr Keelty : Yes, but I do not want to mislead you: the point I made in the report is that the system was so parlous you could not come to that conclusion. It remains out there as a possibility.
Mr HAWKE: So you can't rule it out?
Mr Keelty : You cannot rule it out, but you cannot rule it in either.
Mr HAWKE: You found no evidence to suggest that it was somebody—
Mr Keelty : No.
Mr HAWKE: an actor within the system, deliberately acting to interfere with the process?
Mr Keelty : One of the things that militates against that suggestion is the fact that we had two divisions affected by this. And when you look at the way the boxes were parcelled and marked and packaged, it was quite distinctively different from those two divisions; and those two divisions were not side by side—one is in the north of Perth, one is a number of kilometres south of Perth. What militates against this being foul play is that the system seems to have let itself down—there are things about the system that were missing in both parts of those divisions.
CHAIR: Mr Hawke, do you mind if I just pause you there for a second because Senators Ruston and Macdonald have committee commitments, and they pointed that out a while ago. For the sake of fairness, would you mind giving both of them a go because they need to depart in a few minutes, then we will come back to you.
Senator RUSTON: Mr Keelty, you make the statement all the way through about how it is terribly labour intensive and relies on people, and at one stage in your findings you comment that whilst you have not made any suggestion there was criminality involved there is nothing to suggest it can be excluded. Given the discussions we have been having this morning, the big question has got to be: if this process is to be better handled, should we be looking at a more electronic form because of the logistics of moving such a massive amount of paper around and with all these people? How much of that could be solved, in your opinion, by changing to an electronic system?
Mr Keelty : I could not agree with you more, Senator. You all know it when you see those ballot papers that are a metre long. As I say in the report, logistically that means the boxes they are contained need to be a metre long, if not longer; the boxes that they are repacked in need to be the same; and when they are on a pallet they do not sit on the pallet properly. And they had to issue 130,000 readers because to fit the number of parties on that metre-long ballot paper meant that the typeset was so small. It is almost impractical.
Obviously, I came in after the counting. I looked at the photographs of how they count them—you have probably seen them. They have these big, long folders and they turn one page over and then upload the data, and then turn the other. I do not know how you can say that is a mistake-free environment. We are lucky in this country that we have a democracy that is so important to us. The importance of being able to vote needs to mean it can count. I know the electoral commissioner and the deputy commissioner have apologised, but they have disenfranchised 1,370 people who have gone to the trouble of voting.
I think we need an electronic solution. The ACT trialled it in the last election. I am not an expert on this. I came in very naively and said that if we run a Melbourne Cup and millions of Australians will bet on a Melbourne Cup and we know within four minutes of the end of the race not only the outcome of the race but what dividend we are all going to be paid, why can't we do this?
Senator RUSTON: In 1967 we put a man on the moon.
CHAIR: Someone said to me after our first public hearing that there was more security with the Brownlow votes on Brownlow night.
Mr GRIFFIN: It is a much smaller ballot.
Senator IAN MACDONALD: You are an experienced and forensic investigator. You have investigated some big crimes involving billions of dollars where businesses compete with each other, take illegal action claiming fraud, irregularities and criminality. Is there a possibility in this case that there should be a further and wider and deeper police crime commission inquiry, bearing in mind that by the time these votes were lost people knew there had been a change of government? Anyone who follows politics knows that the Senate can block legislation like mining taxes, carbon taxes and that can mean billions of dollars change hands. I am not suggesting it happened in this case, but take the case of the work of Amy McGrath—and you would not take note of all it. She ran a group about electoral fraud. We all know there are politicians and others in jail for electoral fraud. Again, I am not suggesting any politicians are involved. Amy McGrath has hundreds of examples, though some of them you may not look further into.
Mr GRIFFIN: I am going to dispute Amy McGrath being considered an expert before this committee, straight upfront—for God's sake. Make your point, Ian, but don't go on about the expertise of someone when are not having that debate.
Senator IAN MACDONALD: In fact, I said the opposite. I said you would not—
Mr GRIFFIN: You did the old trick of saying it and then saying something else about it.
Senator IAN MACDONALD: You are very sensitive about this.
Mr GRIFFIN: I am very sensitive about lunacy.
Senator IAN MACDONALD: You have said you have looked at it and you could not come to a conclusion. This is a case where a lot of money could be influenced over the next 2½ years with a different Senate. I wonder if you think there is a need for a wider criminal investigation by people that is properly resourced? You were there by yourself. I wonder if you have given that any thought?
Mr Keelty : I did, right from the outset. That is why I encouraged the commissioner Ed Killesteyn to call in the AFP for the briefing I received. If at any stage in the process we had any inkling of something criminal having happened then the AFP could be called in having had a pre-briefing.
I understand what you are saying, but I have to say to you that, if you are suggesting a commission of inquiry, I think they would be faced with the same problems that I was faced with—and that is that it is so long now since the event and so much stuff has been destroyed. Certainly boxes and items identified as refuse have been recycled. There is no way to recover what would be critical evidence. I understand what you are saying, but there was no suggestion of criminality. I am not ruling it out because the system was so bad that I cannot.
Senator IAN MACDONALD: Something like the Crime Commission has the forensic capability to do the sums and ask, 'Who might benefit from there being a rerun of the election?' I am not talking about political parties here; I am talking about people who can look and see what legislation is and is not going to be passed.
Mr Keelty : Again, I understand what you are saying. I think it would be an almost impossible task because, as you know, in the life of a parliament things that are on the table at the end are not necessarily things that were on the table at the beginning. So it would be very hard to determine that. But I am very aware of what you are saying. I had that at the back of my mind all the way through—right from the word go.
Mr HAWKE: I just want to finish on this point, and I think it is similar to Senator Macdonald's. What you are saying is actually quite disastrous, Mr Keelty, in a sense, because there could have been an actor here deliberately seeking to alter the outcome of this election. Because of the disastrous nature of the arrangements, we will never know that. Someone could have deliberately acted to remove these ballot papers. We still do not know where they are. We have not been able to ascertain that.
Mr Keelty : That is correct. That is the important bit—the last bit that you said. Equally, we cannot discount that they were thrown out with the rubbish. The one thing that really troubles me about the possibility that you suggest is that nothing has turned up anywhere. As I said to you earlier—
Mr HAWKE: That is concerning. We accept that most Australians are benign in their intentions, so if they had been accidentally put here or there they may have turned up by now. So there is equal weight to be given to the fact that they could be in the rubbish or that they could have been deliberately destroyed by somebody.
Mr Keelty : But nobody could have known that the outcome would be as close as what it was. Obviously it is public knowledge now.
Senator IAN MACDONALD: But it would have been by the time they—
Mr HAWKE: No, I think that is right. I think the motivation could have been to not necessarily turn the result one way or the other but to spike the result because it was not helpful to them.
Mr Keelty : What mitigates against that, as I say, is the fact that two different divisions were affected. If the systems were foolproof and were adhering to the policies that the central office had distributed then I would agree with Senator Macdonald and you. I have to say, from my heart of hearts, it was so bad. There is no other way to describe it. As I said, you cannot sugar-coat it. It was so bad.
Mr HAWKE: This is so important what you are saying—that it was so bad. I guess my final question on this issue then is: how can we do things to prevent that possibility? We are actually saying here that because the structures were so bad anybody could have gone to work in the system, taken these votes and changed our election result. How do we prevent this?
Mr Keelty : There are a couple of important things here. One is that in the report I emphasise that the system relies on trust. That is important. The second point is that with the level of accountability that you are trying to acquire you would have to weigh up the cost benefit of applying all of those constraints. For example, the 70,000 volunteers who come on board are supposed to be tested for political neutrality. In the by-election in Griffith they have only just finished the criminal background checks for people who were working on it. A bit of tightening at that end is in the recommendations. But you simply would not be able to conduct the election if you made it too tight with the number of volunteers and people helping that you need.
It is a matter of risk and reward. You weigh up the risks and you ask how you mitigate those risks. I think, if nothing else, the AEC has learned a big lesson out of the mistakes that have been made here. The fact that the High Court has now ordered a fresh election is probably the worst possible outcome for the credibility of the organisation—which, hitherto, had had a great reputation. We export the product. I have been in the Solomon Islands and I have been in East Timor when we have had AEC officials on the ground for the popular ballots.
CHAIR: Yes, they have made that contribution.
Mr HAWKE: Surely, given that people deliberately try to game the system—legally in some cases but also illegally—should we not do things to alter that? I understand costs and benefits, but here we have a very good example of what happens in a cost-benefit structure where it goes wrong.
Mr Keelty : It is a matter of what the electorate would tolerate, what the populace would tolerate as a constraint. By and large, the system has worked extraordinary well for the majority of our history. In talking about gaming, the gaming I am certainly aware of is the gaming that occurs in the area of candidates and ticketing. That is a particular aspect of the political process—a different aspect.
Mr HAWKE: There are certainly examples of people who have gamed the system outside the law.
Mr Keelty : There are a lot of examples of that. The Mundingburra by-election was one example from years ago. I recall, from the time I was with the AFP, some examples from Queensland.
Senator SMITH: The situation that most resembles the Western Australian situation occurred in South Australia in 1906—the ballot papers were alleged to have been burnt, only to be found again in a post office. Are you confident the ballot papers in Western Australia are not to be found?
Mr Keelty : I cannot say—because the system was so bad.
Senator SMITH: I think that is the right answer for a former police commissioner! I want to go back to some of the comments you have shared, particularly in response to Mr Griffin's questions and Senator Kroger's. You mentioned that there was high-level policy in place but not at the local level. I assume you mean that, at the AEC national level there were policies in place but not at the Western Australian local level—that it fell down at the local level. But, at your finding No. 27, you make it very clear that the culture of the WA office and its compliance with operational policies and procedures was 'not subject to detailed monitoring'. Then you go on to say:
While a system of comprehensive internal audits was in place across the AEC, it did not identify issues with the culture, poor planning, failure to follow procedures or poor contract management in the WA AEC office.
I think a critical issue for this committee is: what has happened between the AEC national office responsibility and the clear, to use your own words, lack of consistency, poor culture, resistance and miscommunication at that state level?
For our democratic experience to be valuable, every voter has to have the same experience, irrespective of where across the country they go to vote—and every vote has to be counted in exactly the same manner. Can you illuminate us about what you meant by finding No. 27? I have raised a number of questions directly with the acting commissioner and other AEC officials on the issue of risk management practices. With the work that is being done well in advance of elections to make sure that diagrams like the one you pointed to in your findings—clearly it would take an expert to understand what that means—my proposition is that there is a systemic failure in how the AEC nationally is managing its state offices. What we have seen in Western Australia is the worst case scenario. Can you illuminate us a bit more about what you mean by finding No. 27?
CHAIR: Sorry to interrupt, Senator. We lose this room at 11.15 for another public hearing. I appreciate your patience but can we keep the answer and questions as short as possible. Mr Keelty, you would be happy to come back at some other point?
Mr Keelty : Certainly. I have to make it clear that I did not look at other states, but I did gain the distinct impression that other states labelled differently and other states set up their recount centres differently. I might stand corrected on this—if I am wrong and if I come back, I will correct the record—but I really question the wisdom of having two election operations being run out of the same centre. You are probably familiar with that at Northbridge. I can understand why they do it, but inside the centre they need to have the rooms set apart.
Senator SMITH: To be clear: at finding No. 26 you talk about a culture of complacency having emerged in the WA office. At finding No. 27 you talk about the WA office not being subject to detailed monitoring. I am assuming that is monitoring from the AEC national office.
Mr Keelty : No, monitoring from the head of that office; the state manager of that office.
Senator SMITH: Who reports back to the AEC national office.
Mr Keelty : I am conscious of time, but one of the things that I was totally unaware of prior to undertaking the inquiry was the statutory independence of the state managers. They do run their own race to a degree. You would know that better than I.
Senator SMITH: Mr Goodenough, is that a question you were going to ask the commissioner?
Mr GOODENOUGH: On the statutory finding?
Senator SMITH: Yes. You ask that question and, if time allows, then come back to me. As that may well not be the case, we can perhaps follow it later.
CHAIR: I am very conscious that those asking questions are being very patient. It is important that we have the hearing but they are always fraught on sitting days, of course.
Mr GRIFFIN: I put on the record that standing committee members, which include Mr Goodenough, should be the first ones to ask questions and senators who are—
CHAIR: Mr Goodenough and I spoke about it earlier.
Mr GRIFFIN: fly-in fly-out members of the committee should be treated accordingly.
Mr GOODENOUGH: Mr Keelty, following on from what Senator Smith alluded to, you recommended that the committee look at the statutory appointments of state managers and the AEC Commissioner being able to achieve national uniformity. Can you please expand on these issues and what is needed to make this recommendation.
Mr Keelty : It could almost be out of place for me to comment on this, but I was surprised at the level of autonomy of a state manager. This is not about the person. I spent a lot of time with the state manager trying to get him to understand the import of what had happened. Where are we? We are in March. It was only mid-February that he stood down. I was surprised that he did not stand down much earlier, because in managerial accountability terms he had to take responsibility for this. There is a difference between responsibility and accountability. He was responsible for having all those regulations and all those plans in place. I think what it left the government, the committee or the parliament with is: what do you do with a non-performing state manager? Understanding in the Constitution the importance of that position in terms of a tied vote in the Senate, which I was ignorant of until I took on this inquiry, I think there need to be performance measures for these people. What do you do if you get a lunatic? I'm not saying that Mr Kramer was a lunatic. But what happens if you get a lunatic in one of these places? It affects your whole democratic process. If it were affecting the Senate in this current parliament, it would have dire consequences.
Senator SMITH: This is very important, because what your findings also found is that the 2010 election findings had not been implemented—that is three years ago.
Senator TILLEM: I am surprised to hear you talk about the electoral process being organic—in WA, in this instance—with utes and the transfer of ballot papers. It astonishes me that an electoral system has room to be organic. Having read the report, it is quite clear that, if there were processes and procedures in place that were implemented as they ought to have been, we would not be in this situation. Would that be a fair summation?
Mr Keelty : That is correct, but I think the logistics demand that it to be organic because of the distances involved and the locations involved. You know where some of the polling stations are, as well as access to the polling stations and the availability of secure places to store things. In a sense it needs to be its own system. It is a hybrid developed over a century, but it has aspects to it that really do not take advantage of modern technology.
Senator TILLEM: I am still astounded that simple procedures could have prevented this from happening. The organic nature of it is outside the realm of what the act allows for and what the system should be. Because of the nature of the workforce—this is an issue for the AEC and state managers—it should be clear-cut about what needs to happen from point A to point B to point C to D to E. It is not just about the transportation of ballot papers, but what happens from 8 o'clock in the morning to when the ballot closes and to when the ballot is counted and to the transportation. I am not sure there is any room for the 'organic'. This is where human error comes in.
Mr Keelty : Yes, but I guess it depends on your interpretation of 'organic'. For the system to work, there are 70,000 volunteers, all of differing levels of intellect, to be given a training course on what they are supposed to do. It was mentioned before by Senator Back that there were clearly people who did not know what their role was on the day. That is going to happen if you have 70,000 people.
CHAIR: The deputy chair made the point at our first public hearing that the National Audit Office should go back and have another look. They are now conducting some more audits. The role of the Audit Office is to make sure no-one ever feels 100 per cent comfortable. In retrospect, would you agree that the Australian National Audit Office gave the AEC a very big warning and did them a very big favour years ago, but it was not heeded at that point?
Mr Keelty : I have had this experience at other inquiries, Chair, where the Audit Office has looked at compliance, and it hasn't been acted upon. I think that is the role of the Audit Office, though I did learn as an inquirer that you can't recommend that the Audit Office does an audit. The independence of the Audit Office does not enable you to recommend that they do so. I am sure that people will get the message out of this inquiry about what should happen.
Mr GRIFFIN: I guess you can raise it as an option from them to consider. It is still their decision or a committee's decision to seek a referral through Public Accounts to do it.
Mr Keelty : In my position I didn't think I was able to do it.
CHAIR: Thanks for your evidence today. We might get you back for some more evidence after our future hearings. I declare this public meeting closed.
Resolved that these proceedings be published.
Committee adjourned at 11:14