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Joint Standing Committee on Electoral Matters
31/01/2017
Conduct of the 2016 federal election and matters related thereto

MOORHEAD, Mr Evan, Australian Labor Party

Evidence was taken via teleconference—

CHAIR: I now reopen this hearing. Welcome. Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and therefore has the same standing as proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence given today will be recorded by Hansard and does attract parliamentary privilege. I now invite you to make a brief opening statement before we proceed to questions and discussion.

Mr Moorhead : Thank you, Senator, and thank you to the committee for the giving me the opportunity to participate in today's hearing of the Joint Senate Committee on Electoral Matters. I have held the position of state secretary of the Australian Labor Party Queensland branch since 2014. This is the first time I have been invited to appear before the committee. I am sorry I am unable to attend the hearing in person due to prior commitments but I am happy to contribute what I can over the phone to you today.

As committee members are aware, last year the Australian Labor Party made a submission through its national secretariat, which was quite a detailed submission to the inquiry's terms of reference. I would like to talk to some of the points made in that submission which relate to Queensland.

The committee will be aware that, following the 2016 federal election, the Australian Electoral Commission conducted a recount in the division of Herbert. Part of the national secretariat's submission dealt with provisional votes in that seat. There were several occasions noted by ALP scrutineers which saw the AEC reject provisional votes made in Herbert, despite there being no question of the person claiming the provisional vote was the person on the roll and no evidence that the person had not already voted. That is of some concern to me, and I believe it should be of concern to committee members.

As well, the national secretariat submission dealt with the issue of donations. Part A6 of the submission states:

Labor supports in principle the implementation of ‘real time’ disclosure, subject to its feasibility being investigated by this Committee. Enhanced transparency and greater openness mitigates the risks of undue influence, and can increase public confidence in our electoral system and institutions.

Committee members may be aware that the Queensland state government is in the process of implementing real-time disclosures. We have been working with the Electoral Commission Queensland to work out how, as a participant in that disclosure regime, we can work with that real-time disclosure process. To date, it has been a good disclosure process run by the Electoral Commission Queensland, and we think it is a good and simple process that can provide significantly greater transparency for voters before they vote.

In our view, real-time disclosure would have led to much more transparency at events like the 2016 Gold Coast council election. It was not until after the election that voters were made aware of the fact that the LNP Fadden Forum vehicle had donated money to so-called independent candidates who were actually LNP associates, some of whom work for the LNP member for Fadden, Stuart Robert. I note that that matter is still being investigated by the Queensland Crime and Corruption Commission.

The Labor Party has also expressed concerns about the Fadden Forum not being declared an associated entity for the purposes of electoral donation declarations. We continue to hold the view that the Fadden Forum is an associated entity. But transparency does not begin and end with real-time disclosure and whether or not a fundraising forum is an associated entity or otherwise.

The ALP believes the federal parliament also needs to look at other important transparency issues such as politicians' entitlements and millionaires hiding cash in tax havens in the Caribbean and places like the Cayman Islands and the British Virgin Islands. 2017 has got off to a bad start for the federal Liberal Party. The abuse of entitlements and rorting by the former health minister—

CHAIR: I am just wondering if you could keep your opening statement relevant to the terms of reference of the inquiry.

Mr Moorhead : My point is—I was trying to go to transparency. I will conclude my statement, then, by saying that we see that there is a need to restore voters' trust in the institution of parliament, and the Prime Minister has to, I think, improve disclosure and transparency to ensure that we have an institution that is upholding healthy and functioning democracy. Thank you for the opportunity to make a statement today. I am happy to take questions from committee members.

CHAIR: Thank you very much, Mr Moorhead. Mr Morton.

Mr MORTON: Thank you, Mr Moorhead, for appearing via teleconference today. I too would like to talk about the issues of trust and transparency. I am going to refer parts of my questions to the ALP's submission about authorisation of text-messaging. You would be aware that the ALP's submission would require text messages to have an authorisation attached to them. I refer you to the last election campaign, where there was a text message sent by your organisation that was purported to have been sent by Medicare. If such a text message was sent in the future, where authorisation was required, would you be the person whose name would authorise that text message?

Mr Moorhead : Mr Morton, I do not accept the premise of your question. And the matter of the text message was considered by the AFP, who in their public statement made it clear that there was no concern. In fact, their comments, as reported in The Australian on 3 August 2016, were:

… no commonwealth offences were identified. 'This matter is now considered finalised and no further comment will be made.'

As to what the process would be if the law changed—

CHAIR: Sorry, Mr Moorhead. Mr Morton, on a point of order.

Mr MORTON: Mr Moorhead, I would like to ask a few specific questions, rather than—

Mr Moorhead : I have not answered your first question yet.

Mr MORTON: You certainly haven't.

CHAIR: Mr Moorhead, if you could answer the question.

Mr Moorhead : Mr Morton's question relies on a hypothetical change of law by parliament which has not been tabled or considered, and I just cannot speculate on what would happen in that situation.

Mr MORTON: Mr Moorhead, I will try it one more time. Your ALP submission recommends to this inquiry that text messages be authorised. I am highlighting to you a specific text message that was sent at the last election. I am asking you about your submission and asking: if your recommendation were adopted, would it be your name that would be authorising a text message like the one that was purported to come from Medicare?

Mr Moorhead : And my answer, Mr Morton, is that someone from the ALP would authorise a text message that was from the ALP. Whether that would be me is another question. In our party process, just as in your party process, Mr Morton, there are a range of people who authorise material.

Mr MORTON: Ordinarily, is it you that authorises material on behalf of Queensland Labor, or is it somebody else?

Mr Moorhead : In a federal election campaign, there are a range of people who authorise material. It could well be the national secretary authorising material. It could well be me. It could well be others as well.

Mr MORTON: Okay.

Mr Moorhead : I am not the exclusive authoriser of campaign material in Queensland.

Mr MORTON: We will move on from that. I have come to the conclusion that we have flogged that one as much as we can. In relation to that text message in particular, how many of those text messages were sent?

CHAIR: The deputy chair, on a point of order.

Mr GILES: Mr Morton will remember that we have in fact issued a report on item 1(a) of the terms of reference, and perhaps he might move to the matters that are relevant to our deliberations going forward.

Mr MORTON: My understanding is that that was an interim report.

Senator IAN MACDONALD: That is right.

CHAIR: It was an interim report, but perhaps you could—

Mr MORTON: Mr Moorhead did not present to the committee in the preparation of the interim report, and therefore I think it is completely relevant that I ask questions relating to those text messages.

Mr GILES: Because you are not happy with the report.

Mr MORTON: Well, I don't know. Depending on Mr Moorhead's responses, I might find that I recommend to this committee, Mr Giles, that there is new information.

CHAIR: Given we have time and this is the first time that Mr Moorhead has appeared before the committee, I will allow the questions to proceed.

Mr MORTON: Mr Moorhead, how many instances of that text message were sent on election day last year?

Mr Moorhead : I do not have that figure with me. It was a small proportion of Queensland voters. It was sent out in Queensland. My best estimate would be that it would have been five per cent of voters for whom we had a mobile phone number.

Mr MORTON: That is fine. I am happy for you to take that on notice. Are you happy to take on notice the number of text messages that were sent and to which electorates?

Mr Moorhead : My best estimate is that it would be five per cent or—

CHAIR: Sorry, Mr Moorhead. I have another point of order.

Mr GILES: We have discussions in the past, in hearings of this committee, about the operational decision-making of political parties, and I think that, before the witness is given that direction, we should deliberate on its appropriateness.

CHAIR: If we could just suspend—

Mr GILES: I do not want to interrupt the questioning now, but, if we are going to give him a direction, we should make sure it is a proper one, given that we will be debating a similar question.

CHAIR: A direction on what?

Mr GILES: On providing further evidence.

CHAIR: About taking it on notice? I understood you were going to ask him to take it on notice.

Mr MORTON: Yes, I have done so.

CHAIR: He has actually asked to take the question on notice.

Mr GILES: Indeed, but we have had some discussions. I do not want to interrupt because we have a witness before us. We discussed earlier, and in one earlier hearing as well, the issues of us making inquiries which go to the internal decision-making of political parties, which I think is beyond the remit of this committee and I think we should be careful in issuing invitations to witnesses that might go beyond that.

CHAIR: Given this, my apologies, Mr Moorhead. I am just going to suspend the public hearing and we will have a quick private meeting to discuss this because it does go to issues we talked about earlier. We will suspend the hearing and clear the room. Mr Moorhead, we will call you back in five minutes.

Mr Moorhead : Great. Thank you.

Proceedings suspended from 11:27 to 11:34

CHAIR: Welcome back. I now declare the public hearing re-opened. I will hand you back over to Mr Morton.

Mr MORTON: Thanks. Mr Moorhead, to clarify: could you consider taking on notice questions relating to how many text messages of that particular message were sent into what seats. I would like to add: could you consider providing information on whether or not that was the first text message ever sent by your organisation? You might be able to provide some other copies of other text messages sent by your organisation in the last campaign, so we can start to get a feel for what text messages can look like when received by electors. Is that okay?

Mr Moorhead : No. I will start by saying that all of the relevant information we needed to provide was provided to the AFP. If you have concerns about the way that investigation was conducted, I suggest you should call them or seek their input. In terms of the number, I can say that we probably—

CHAIR: Are you saying that this committee should approach the AFP to get the evidence that you provided the AFP?

Mr Moorhead : We provided all the information we had. I just do not have that number. What I can say is that it would have been about five per cent of voters in targeted seats, so probably less than two per cent of people on the electoral rolls across all of Queensland. That is the best information I can provide you.

Mr MORTON: Okay. In relation to that particular text—and this is important because, obviously, although we have put an interim report out on the issue of text messaging, I think it is very valuable to get your insights given that you are the person responsible for the organisation that sent the text message that I am inquiring about—is it usual in organisations like yours that you send text messages out when you are sending communications out?

Mr Moorhead : Sorry; is the question whether we send out—

Mr MORTON: When you are a campaigner, do you send out a test text message to a small audience to check that your communication is how you require it?

Mr Moorhead : I do not recall whether we did or not in this case or whether that is general practice.

Mr MORTON: Feel free to come back to the committee in relation to that point. The reason I ask that question is that a spokesman for your organisation said:

The message was not intended to indicate that the message was from Medicare, rather to identify the subject of the text.

Is that a correct reporting from a spokesperson from your organisation?

Mr Moorhead : Yes, it is.

Mr MORTON: I believe the text was sent around 11 o'clock in the morning. At what point did you realise that the error or the mistake or the unintended text message had been sent?

Mr Moorhead : Sorry; when did we realise the text message had been sent?

Mr MORTON: You said in the statement that you just confirmed that you had not intended to send the text message as it appeared. I will just reread it:

The message was not intended to indicate that it was a message from Medicare, rather to identify the subject of the text.

At what point on election day were you made aware that the sent field of the text message displayed Medicare and that there was general concern that it was a text message sent from Medicare?

Mr Moorhead : The only time I became aware of a concern that a message was from Medicare was when the Prime Minister started going on about it on, I think, Saturday afternoon or Saturday night. I still do not understand the Prime Minister's obsession with this text message. He has been talking about it incessantly during parliamentary question time and I understand even raised it as an important matter with journalists at the Lodge Christmas drinks as well. The first time we knew it was of a concern was when Malcolm Turnbull and George Brandis tried to use it as an excuse for Medicare being an issue at the election. Perhaps, if Malcolm Turnbull spent more time reconsidering his position on Medicare and less time obsessing over a text message, he would not be so deeply unpopular with Australians.

Mr MORTON: The Labor Party campaign on the afternoon of 2 July, election day, denied knowledge of the text campaign. Are you aware of that denial of knowledge of the text message campaign made by the Labor Party on election day?

Mr Moorhead : By the national secretariat?

Mr MORTON: That is right. Are you aware of that statement?

Mr Moorhead : I cannot recall, but I assume they would.

Mr MORTON: They would what, sorry?

Mr Moorhead : I assume they would, given that that is correct. I do not recall being involved in them making a statement or not, but it would be entirely appropriate if they had done that.

Mr MORTON: Given that it was not the intention of your organisation to have the text appear that it was from Medicare, yet the word 'Medicare' was in the subject line, and given that your submission now would require you to identify yourself as the authoriser of that text message, is that the basis of the ALP's submission on text messaging—that you think that there should be greater transparency in relation to who the actual senders of text messages are in the context of an election campaign?

Mr Moorhead : Of course. We are always happy to contribute to greater transparency and happy to comply with any laws that the parliament may provide. The only prosecution that I am aware of of authorised election material was in the 2007 election, where a Liberal Party member, Gary Clark, was prosecuted for an unnamed 'Allahu Akbar' flyer. We have always complied with the requirements of the legislation and will continue to do so.

Mr MORTON: Did the ALP make any attempt at all on the day of the election to confirm that you were the sender of the text message? Were there any inquiries whatsoever to your ALP state organisation asking you to clarify that you were the sender, or was it convenient for you to allow the deception to run until after the election, where you clarified it days after?

CHAIR: We have got a point of order here.

Mr GILES: I think that is a problematic question at two levels—first, as it started, and, second, the erroneous and unhelpful insinuation at the end. Perhaps if he wishes to rephrase the question, Evan may be able to answer it.

CHAIR: Thank you. I will take that to Mr Morton.

Mr MORTON: Mr Moorhead, I refer you to the LNP's submission, where they claim that the actions of the ALP were to send the text message on election day at 11 am and deny all knowledge of the text message on election day until after the election had concluded. How do you respond to the LNP's submission that that was a strategy on your part? And this directly refers to the issue we are inquiring into, and that is the need to consider greater authorisation on forms of political communication like text messages: how do you respond to the allegation that your organisation, on purpose, decided to send the text message and deny all knowledge, in a way in which you could deceive voters, by only admitting to it the following day?

Mr Moorhead : I do not agree with the submission at all and I reject any allegation by the LNP of improper conduct. I do not recall specific conversations on election day, but we have never hidden the fact that we have sent the message. The moment we have had queries, we have provided that response.

Mr GILES: Mr Moorhead, I am interested in exploring some of the forward-looking aspects of your submission and the continuing terms of reference that this committee has. Can you expand on the comments in the Labor Party's submission about the rejection of provisional votes? In particular, have you received any meaningful response from the AEC in respect of your inquiries there?

Mr Moorhead : I am not aware of any inquiry, and we have raised those matters with the Electoral Commission, both at the time and subsequently in correspondence. It is of concern to me that the provisional vote system was not operating as it should and that ran the risk of people being excluded from providing their democratic right. I have had the opportunity to also read the submission of Mr Lindsay. I have not had the opportunity to hear his evidence but I have read his submission. Mr Lindsay's submission seems to make allegations about Palm Island voting that were never raised by the LNP in a Court of Disputed Returns. Our submission I think was aimed at encouraging a positive protest going forward that would enfranchise more people to exercise their democratic right to vote, particularly amongst Indigenous voters in Herbert.

Mr GILES: On that, are you aware of the proportion of eligible voters on Palm Island who are presently enrolled to vote?

Mr Moorhead : I do not have that in front of me, but it would be a significant disparity, traditionally, in both state and federal—

CHAIR: The telephone line is very bad now. If you do not mind hanging up, we will call you straight back on a new line.

Mr Moorhead : Okay. Thank you.

CHAIR: We have a good line again.

Mr GILES: Mr Moorhead, I was asking you about the discrepancy, if any, between those voters who are likely to be eligible to vote on Palm Island and those actually enrolled to vote. There does appear to be a large gap between the number of votes cast and the number of adults who are said to reside there.

Mr Moorhead : There has been a disparity for some time, where the number of adults over 18 living on Palm Island has always been significantly greater than the number of enrolled persons, and then at election time there has been a disparity between the number of enrolled persons and the number of votes cast. That was made particularly difficult at the 2 July federal election last year, which was also the Townsville Show, when many residents of Palm Island were not on Palm Island to vote but were voting in Townsville, and many of them were using provisional votes. For those people who may not be aware, on Palm Island the system of postal delivery is quite different. Many of the houses and streets are not numbered, and many of the residents on Palm Island collect their post from the post office rather than have it delivered.

Mr GILES: Thank you. I was not aware of the issue of show day. That obviously sheds further light on the significance of the provisional vote reflection. We have heard a lot today and in previous hearings about small groups of voters having been disenfranchised, but it appears to me that there are real challenge that we have in this scenario and indeed in other areas of Australia—a very large number of Aboriginal and Torres Strait Islander Australians who are being, effectively, disenfranchised.

Senator IAN MACDONALD: [Inaudible]

Mr GILES: Well, it goes to the witness's evidence. We have heard a lot of evidence about voters having been disenfranchised.

Senator IAN MACDONALD: Was there a question?

Mr GILES: I am just wondering whether Mr Moorhead is able to comment on the challenges of enrolling voters there for the AEC—what enrolment activity can be inhibited by the issue of the postal address that he raised in his evidence a moment ago. So, perhaps Mr Moorhead might go to that—if he can.

Mr Moorhead : One of the major difficulties in both enrolment and provisional voting has been matching addresses, which are described in a very different way on Palm Island than they would be in Townsville. In our view, the application of that to provisional votes meant that the Electoral Commission were excluding votes when there was a clear understanding of who the person was and that they resided at the address, even though the address on the electoral roll and the address that the person had used on their form may have been explained in different ways due to the significant differences in community infrastructure on Palm Island or lack thereof.

CHAIR: Is this an issue that just occurred at the last election or is this a longstanding issue?

Mr Moorhead : The issue of encouraging and promoting Indigenous engagement in politics is always a significant issue for Queensland state and federal elections, particularly in North Queensland and particularly in electorates like Herbert, Kennedy and Leichhardt. But I think the way the Australian Electoral Commission were making decisions on provisional votes extenuated the existing circumstance by, I think, applying a process which excluded people for whom there was a clear practical understanding of who they were and that they were residing at that address, even though there might be a different process of recording the formal address. This is an exacerbation of an existing problem.

Mr GILES: In your opening statement, Mr Moorhead, you touched on the progress of the Queensland real-time disclosure regime. Transparency and improving donation reform is a big issue for this committee. I am just wondering—and this may be a matter you can take on notice—if there are any lessons from the Queensland experience that this committee should have regard to in preparing our recommendations.

Mr Moorhead : In our process of working the Electoral Commission, I think it has been a significantly simpler process than I envisaged that it would be. But, that being said, we are coming from a framework where only two years ago a prior government had excluded 90 per cent of price of donations from being disclosed. The process does impose significant costs on parties. I am not sure about concerns of counterparts, but I know that we have had to employ a new staff member to meet the costs of it. However, the online interface that is available does allow disclosure to occur quickly. The one process that we have been working with the Electoral Commission on resolving is that in this donation space there really is sophisticated players—mainly political parties—who deal with these processes all day, every day, and have professional staff to do it and then there are the vast majority of donors who might only make one disclosure in their lifetime or one disclosure a year. Between sophisticated recipients and less experienced donors, there is sometimes a difficulty in ensuring that the records are matched before they go public. For example, some people may make a donation to the Australian Labor Party but their disclosure return might say that they have given a donation to a particularly person who is a candidate. What would happen in a process where there was not an opportunity for those disclosures to be reviewed is that they would be published as a candidate not disclosing a return and a donor not disclosing a return to the party. There just needs to be an opportunity in the system for people to ensure that disclosure by recipients and donors is matched, particularly when, for most donors, this is not the primary role of their organisation.

Mr DICK: Mr Moorhead, on the issue of foreign donations, in your submission No. 69 I think you talk about prohibiting the receipt of foreign donations. This is an issue that we found a little difficult to deal with, or certainly I have, in terms of the onus on a company being located offshore if it is owned by an individual who is an Australian citizen but who is residing there or who has dual nationality or perhaps has an operating procedure overseas but has headquarters in Australia—all of those things. Do you have any views on how you think all political parties and individuals should proceed with this?

Mr Moorhead : My experience is a state based electoral disclosure regime that already bans foreign donations. My understanding of the way the Electoral Act 1992 works here in Queensland is to define the property as foreign rather than necessarily the donor. There are often companies with foreign offices or foreign staff or people operating in Australia but who might have an Australia presence.

My understanding of how the Electoral Act works here is that the definition of 'foreign' attaches to the property rather than to the donor. For example, there are lots of corporations that might have Queensland or Australian operations but be headquartered in London or listed on the London stock exchange. Under our regime, they are not defined as foreign. That is the way it operates under the Queensland legislation and has worked, I think, well for a number of years since it was introduced, from memory, in 2011.

CHAIR: I thank you very much, Mr Moorhead, for your evidence here today. You will be sent a copy of the transcript of your evidence and you will have an opportunity to request corrections to transcription errors. Thank you again for appearing here today.

Mr Moorhead : Thank you, Senator Reynolds, and thank you to the committee as well.