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Joint Standing Committee on Electoral Matters - 30/07/2014 - Conduct of the 2013 federal election and matters related thereto

WATSON, The Hon. Giz, Co-Convenor, The Greens (WA)

[15:24]

CHAIR: Welcome. Thank you for your time. Although the committee does not require you to give evidence under oath, I should advise you the hearings are a legal proceeding of the parliament and warrant the same respect as proceedings of the House itself. The giving of false or misleading evidence is a serious matter and that may be regarded as a contempt of parliament. We have heard from Mr Ben Morton from the Liberal Party and we have heard from the Australian Labor Party; we are now going to hear from you.

You are aware of the background of this—that is, one of our early focuses, quite naturally, has been the lost votes debacle in Western Australia. You would be aware that the committee has focused on that. We conducted our inquiries so that we did not interfere with the rerun, we had some observers there from the Thursday prior to the election day through, and then as a committee we travelled across and held some private meetings and briefings and had a tour of the main counting centre. What we are really interested in are any observations you have around improved processes and conduct. While there are many areas where the AEC would say they have improved, we know it is a long journey and we want to get as much information as possible, particularly from people who are intimately involved in Western Australia. That is our context. I have asked each of the other witnesses to make an opening statement and we will then move to some questions.

Ms Watson : Not a problem. Would you like me to make an opening statement too at this point then?

CHAIR: Yes, absolutely.

Ms Watson : Thank you for the opportunity. I was formerly a member of the WA legislative council for 16 years. More recently, in the last three electoral 'events' that have happened in Western Australia—that is, the actual election in September 2013, the recount as a result of an appeal and the subsequent by-election—I was involved in scrutineering, so I have some recent observations when particularly comparing the operation of those different activities. I would like to make four points. I will outline those and then go into them in more detail: (1) I have some observations about inconsistency in the interpretation of the Commonwealth Electoral Act between those different counts; (2) I have some comments with regard to the conduct of AEC officers and the role of the AEC; (3) I want to comment specifically on the events of the lost ballot papers; and (4) I have a point regarding registration of political parties. If you are okay with that, I will take those one at a time. I do not have a huge amount; it will probably take me about five minutes or so. Is that okay?

CHAIR: That is fine.

Ms Watson : So the first point is based on my observations in my role of leading the Greens WA scrutineering teams, particularly at the recount and the recent by-election. One of the things that struck me was that there was a significant inconsistency between the interpretation that was being applied by the senior officer at the WA recount and the divisional officer level at the recent by-election. I will give you an example. Obviously section 239 of the act requires a No. 1 in the box and then goes on to say that 'a tick or a cross is also acceptable'. That was the source of a very high degree of debate during the recount; the numbers were very close so that was a hotly contested matter. In the recount, a tick that look like a V or a tick that was done in reverse—what some people would call a left-handed tick—was ruled informal but at the scrutiny in the by-election the divisional officer said those would be formal. I do not have an issue—it was applied consistently to any ballot paper, but it seems to me that if a voter made the same mark in those two elections one would be franchised and the other would not, even though the voter had made the same mark. I think there is an argument that when it is very clear that a voter has only made a single mark in one box or in the proximity of one box, then that mark should be taken to be a formal vote if you are going to be consistent with the principle of enfranchising the voter. As I said, my experience was that it was interpreted in opposition in those two different counts.

And of course there is the case where a voter has put a dash or shaded in the box. As a scrutineer, I can look at it and say: 'There's no other mark on this paper. This person has clearly wanted to vote for that particular candidate or that particular party', but that also was ruled informal. So it seems to me that the act creates a problem because on the one hand it says the principle is to enfranchise the voter but on the other hand, when you get down to the detail of exactly what mark has been made, there are certainly some AEC officers who are ruling those out. That is my first point.

My second point—would you prefer me to go through these and then take questions?

CHAIR: I think it is probably easier if you just go through them in summary and then we will have some questions.

Ms Watson : No worries. The second point goes to the conduct of the AEC officers. Having spent many weeks working on the scrutinising of the main election, the recount and the by-election, almost without exception I found the staff very professional and thorough and easy to work with. There were probably a handful of officers who would not fit that category, but in terms of any team I think they do very well.

There are some criticisms we have regarding the conduct of the by-election, the most recent event. The first was that it was obviously the shortest time period for the election to be run. One of the problems we encountered was that we were wanting to have people attend pre-polling places, but the AEC either could not or did not provide us with enough timely information so that we could actually logistically cover those places well enough. Now they were under a very tight time frame themselves, so I am not unsympathetic. But with a very large geographical area, perhaps the prescribed period for an election needs to be extended so that those issues of actually determining the places and then letting political parties know where those places are going to be so that we can get our material there—a little bit more time would be very useful.

The second issue we had in that election was the advice we received that how-to-vote material had to be authorised on both sides. We had a lot of difficulty getting accurate advice on this. It cost us tens of thousands of dollars to have to reprint how-to-vote cards and I believe it may also have affected some of the other political parties. As I read it, section 7 of the act actually does require the AEC to educate and inform the community about electoral rights and responsibilities and to also provide advice and assistance. We would say that our experience with the AEC at that point in time was that they were very unwilling to give us any firm advice as to what was the correct procedure, so we had to err on the side of caution and do a complete reprint of our material. As I say, I think it also cost other political parties a significant amount in reprinting. So we would just say that the AEC should be more prompt and more accurate in the advice that it is providing.

My third point is on the issue of the lost ballots. I have just taken the opportunity to remind myself of the findings that Mr Keelty came up with in his inquiry. Those findings were useful, but, by his own admission, his job was rushed and he was inconclusive. Perhaps anybody would have been inconclusive, because there were a range of circumstances that are likely to have led to loss of those ballot papers. I agree that it is very important that all the recommendations made out of his inquiry are followed up, but there are a couple I would like to highlight. One is the issue of AEC staff working very long hours on the actual polling day and what was happening. The evidence that I heard was that AEC staff, at 11 o'clock in the evening, after having probably been there since six o'clock in the morning, were just opening up Senate ballot boxes at that point and starting to record the votes. I think there is a really strong argument that those Senate votes should just be transferred unopened to either a divisional return centre or the central count. I realise there is pressure politically or media wise for some indication of the Senate result on the day, but it would seem that the likelihood of mistakes being made is very high if you are asking people to make sense of another whole set of papers at 11 o'clock at night in a remote centre. Really, we know that it will take days if not weeks before we get a real picture of the result and I think that it would be a lot more secure if the Senate papers were just directly transferred.

It is worth noting that Mr Keelty found that there was an attitude that the Senate ballot papers were not as important as the House of Reps ones and that in itself might have contributed to a more lax attitude to the chain of custody of the papers. As I say, I think the rest of his recommendations make a lot of sense. It is important to note that it was mostly one division where the problem occurred and there were multiple problems with the operation in that division.

The other point I would like to highlight about his findings is that the use of private contractors both as security and as transport is an issue which concerns us, particularly as these additional staff are not vetted at all for their political neutrality. As to Mr Keelty's conduct of his own inquiry, he conducted an interview with me, which I appreciated, to get my impression or any evidence I could suggest with regard to the loss of the ballot papers.

But I should say that in my parliamentary role I chaired a standing committee for eight years, so I am quite aware of issues of taking evidence, Hansard,recording and that kind of requirement if you are going to have a robust inquiry. But Mr Keelty had a conversation with me on the telephone that was not recorded, and I assume he must have just got an impression from what I said. And it seemed to me that if that was how he was conducting his inquiry generally then that was of concern, because I would have expected that evidence would have been recorded. If it was being recorded, I was not told it was being recorded. I can only assume that he was taking mental notes as he went along.

That is it, with regard to the loss of ballot papers. My final point is just a brief one, and it has probably been raised by others. The issue of the proliferation of micro-parties contesting elections is a phenomenon that really has become prominent. We certainly had a lot of inquiries as to whether the AEC was checking that all of those parties had separate membership or whether there was an overlap between people who were members of multiple micro-parties. That might be outside of your terms of reference, but I just thought I would pass it on as well. I assume it is the role of the AEC to conduct that sort of investigation. With those comments, I am happy to take questions.

Senator RHIANNON: Thanks for your evidence. With regard to how it works in different polling booths, we have just had an interesting discussion with people from the other parties, and there have been different emphases on whether it is a problem of how the act is interpreted or whether just do not thoroughly understand what they are doing or it is more about complacency, or maybe a bit of everything. I think it is important that we flesh this out a bit, because I think that will help inform us more in terms of recommendations. Certainly what surprised me, and maybe it should not have, was that once you get to a by-election—and it was so extraordinary that we had one—you would have thought everything would have been shipshape, but you get the impression that it was not. So, getting into the detail of what has happened, and why and how, would be useful—getting your experience right down at that very key level where we go from casting a vote to counting a vote, and how that all played out. Any observations on that would be useful.

Ms Watson : In terms of the by-election specifically?

Senator RHIANNON: Yes, I think the by-election specifically. Any other observations would be useful, but the by-election is where we are at the moment.

Ms Watson : I think in the comparison with the attention to detail in particular, security aspects were much more evident in the by-election. One almost felt that the AEC was on its absolute best behaviour, which I guess was not unreasonable considering the criticism and the cost as a result of the circumstances that led up to the by-election. But, as I said, I think for me the biggest difference was that the actual handling of the boxes and the stored material or transported material was much tighter—tamper-proof tape and very clear labelling of boxes. That, again, was responding to some of the Keelty findings. At the counting centre I attended, which is in the division of Forrest, they were meticulous; there is no doubt that they had lifted the game in that regard. As for the conduct of the officers themselves, I found on previous occasions that they were professional, capable and easy to work with, and I think that remained the same.

Senator RHIANNON: Have you had any experience of ballot papers that were actually issued to people that were photocopied?

Ms Watson : Yes, indeed. In the recount—dealing with the ballots from the September 2013 election—there were a number of occasions when scrutineers raised concerns about photocopied ballot papers. As you all know, the ballot papers were very long. They comprised two pieces of paper sticky-taped together.

Senator RHIANNON: Sticky-taped together? An actual ballot paper that somebody had voted on?

Ms Watson : Yes, that is right.

CHAIR: Is that where the envelope-opening machine had cut through the ballot papers?

Ms Watson : You raise a good point. That was an issue, and that was certainly a significant issue in the by-election. In the count centre in Bunbury quite a considerable number of the papers had to be discarded because there was a slice through a box and it was not possible to determine whether someone had made a mark in that box. So, that was one thing. But these other ones that were photocopied were in fact from the polling station in London. The AEC officer in charge of the recount contacted London to confirm that they had not had sufficient ballot papers printed and available and that they had to run some off on the day. That caused quite a lot of concern about the integrity, I guess, of the papers. The papers were ultimately accepted as being formal. You would think that that logistical problem would be avoidable.

Mr GRAY: Perhaps I could get you to back up for a second or two in your evidence. You told us that there were envelopes that were sliced open and that the slicing action sliced also through a ballot paper, which meant that it was difficult to read the numbering on the ballot paper.

Ms Watson : Correct. Postal ballots are bulky, given that they are such long pieces of paper, and the AEC employed a machine to open the envelopes, but when they retrieved the ballot paper out of the envelope, 10,20 or 30—that sort of range—of the postal ballots were declared informal because the slice was through one of the boxes. So, the argument was that we could not tell if they had put a mark in one of those boxes.

Mr GRAY: So, those ballot papers were declared to be informal because of a handling error by the electoral officer?

Ms Watson : Yes, that is correct.

Mr GRIFFIN: On your impressions around the general level of professionalism of the booth workers and the AEC officials you saw, I just wanted to get a sense of where in fact you were predominantly scrutineering. I imagine that on the night you would have been in a particular booth.

Ms Watson : Yes

Mr GRIFFIN: Given your focus on the Senate count in the original election, the recount and the by-election, a lot of the work you would have been doing would have been at centralised counting centres, yes?

Ms Watson : Correct. In the recount I spent the best part of three weeks at the Northbridge recount centre, which would make sense, because that is where all the action was happening. During the by-election I travelled to the divisional return centre at Bunbury, which was for the seat of Forrest—actually, it was for a number of divisions, Forrest and O'Connor, I think, was being counted there as well.

Mr GRIFFIN: I guess what I am getting at is that although it would be great and ideal if we had experienced, skilled, professional staff right the way through, and that is what we have to aim for—I have had a general view about election day, which is: let it happen; get us some decent figures at the end of it; keep the stuff secure; and then if it is tight there will be a recount and we will basically work it through from there. Hopefully, once we get to the recount stage not only are we dealing with professional party scrutineers we are also dealing with, if you like, more experienced AEC officers. I am pleased to hear that from your perspective you found that the staff you were dealing with were generally competent and professional. I am going to lead the witness and basically say that the higher up the counting tree you go the more likely that is to be the case, which is self-evident.

Ms Watson : Absolutely, that is right. The recount was particularly notable for the standard. I guess what one is looking for is consistency across all of the officers and whoever is in charge making sure that everybody is following that consistently. I had no criticism of that. Once a ruling was made that a mark would be accepted or would not be accepted the whole place responded to that. My concern was the difference between the recount and the by-election, where you would have, let us say, a V in a box, which someone might say looks pretty close to being a tick and someone else says, 'No, that's actually a V, not a tick.' It was interpreted completely the other way between those two counts.

Mr GRIFFIN: The thing I would say about that is, given that it was such a tight result, I am not surprised particularly, although it is not great, that you are getting different interpretations on different occasions. But if an officer is experienced enough to be able to have a working understanding of the act—although the act can be a bit confusing it is also relatively clear about what is and what is not a formal vote—it should eventually get to the stage where it gets to someone who knows enough about it to be able to make the same call on both occasions.

Ms Watson : Yes, you would think so. You would hope so. That is true, I guess, but if you have the level of scrutiny that you have at a recount every time then that would be true, but a recount is a particular set of circumstances, if you see what I mean.

Mr PASIN: We had some evidence earlier from the director of the Liberal Party in Western Australia, who indicated that he was surprised that the count for the 2014 by-election took place in three separate locations. What is your observation about that and particularly about whether there was any logistical reason that it could not have occurred in one location or why it lent itself to towards the three?

Ms Watson : That is a good point. There were three regional counting centres—Geraldton, Kalgoorlie and Bunbury—and then the central one, which was in Welshpool or Cannington; it was in the city, anyway. From a purely logistical point of view for scrutineers, we had to fly people to Kalgoorlie—I can tell you that at least one of the political parties just did not send anybody out. We felt very strongly that all of the papers should have come into the central count. It would go a long way to dealing with consistency questions if you have it all under the control of one AEC officer. If there are any challenged votes they will all be judged by the same person. I think that was my previous point, which partly arose out of Kelty's findings, which were that bringing everything in centrally and not opening it anywhere else would remove a lot of the potential errors.

CHAIR: We have no further questions. Thank you, very much, that has been most useful along with the evidence we got from the other party representatives this afternoon. We have the AEC in tomorrow, so if you are minded to listen to any of that it will be available on the web.

Ms Watson : Is that streamed live?

CHAIR: If you jump onto our committee site you will be able to access it.

Mr GRIFFIN: You will be able to see it live; just do not ask me to try and make the technology work.

CHAIR: If in the coming days or weeks there is anything that you want to add, please feel free to put in a supplementary submission. We have made that offer all the way through. On behalf of the committee, thanks again and enjoy the rest of the afternoon in Perth.

Ms Watson : Thanks, very much, for the opportunity and all the best for your inquiry. I will look with interest for the report.

CHAIR: To wrap up today I just need a motion from the deputy chair to authorise the evidence for publication.

Mr GRIFFIN: Yes, so moved.

Committee adjourned at 15:57