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Finance and Public Administration Legislation Committee
(Senate-Thursday, 20 November 2014)
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Australian Electoral Commission
CHAIR: I welcome Mr Tom Rogers, the acting Electoral Commissioner, and officers of the Australian Electoral Commission. Mr Rogers, I invite you to make an opening statement.
Mr Rogers : I am conscious of not taking up too much time with this opening statement, but I would like to provide a very quick overview of some areas of focus since our last appearance at this committee in May. As I said then, the AEC continues with a range of measures to rebuild the faith of the community and this parliament in our capacity to deliver an accurate and reliable election result. I know that members of this committee will understand that this remains our key focus and that it will not be either a quick or an easy fix.
We continue to adapt our reform model to meet emerging issues and we are currently examining other ways we can ensure a speedy, controlled and successful reform journey. As a result of the directions I have given, the next federal election, should the electoral cycle run to a full term, will be staffed by an election workforce trained using contemporary learning methods and content and will apply processes that are consistent from polling place to polling place and from count centre to count centre. The organisation will also be operating within an approved assurance, compliance and planning framework supported by long-term implementation of better commercial practices for the handling and security of ballot papers and other election materials.
Since our last appearance before this committee, I have also made the decision to establish an Electoral Integrity Unit which has already begun looking at a wide range of measures to ensure the integrity of our electoral processes—beginning with the integrity of the electoral roll. At our last appearance, the topic of multiple voting was also discussed. To update you, we have since referred some 7,700 cases of suspected multiple voting to the Australian Federal Police. To the best of my knowledge, this is the highest number of referrals ever and it is an indication that we take the integrity of our electoral system and the concept of 'one person, one vote' very seriously. I would also like to inform the committee that we have caused summonses to be issued to just over 3,000 apparent nonvoters, having mined the efficient and effective use of Commonwealth resources by prioritising those cases we felt were particularly egregious, including cases of repeated nonvoting. That is the end of my opening statement. I am happy to take any questions.
CHAIR: Thank you, Mr Rogers. From a personal perspective, I congratulate you on chasing the names of those people who voted more than once.
Senator McKENZIE: I have two series of questions. My first series goes to access to the roll. I understand that early last year the AEC changed its policies in relation to roll access. Can you outline those changes?
Mr Rogers : Yes, I can. A decision was made by the then commissioner and the commission to change the process or the policies for allowing access to the roll. It was not to deny access to the roll. There is a very clear understanding that access to the roll is a fundamental part of a transparent, democratic process. But it was designed, in the opinion of the then commissioner, to provide a greater degree of privacy and protection to the details on the roll. There are a range of other reasons why that process was put in place.
I should be up-front, Senator, and let you know that we have had a lot of contact from individuals about that decision that we have put in place to restrict that access. There have been a number of complaints. This matter, as I understand it, is a particular reference point from the minister to the Joint Standing Committee on Electoral Matters, who will be examining that during their current term. I should also point out that there is a pending Federal Court case on this matter. I might throw to Mr Pirani to remind me of the date when that is likely to go before the Federal Court.
Mr Pirani : It is listed in April next year for a hearing in the Federal Court in Melbourne; I think it is the 13th.
Mr Rogers : Just to finish: the outcome of the joint standing committee hearing and that court case will obviously have an impact on our own policies and procedures. I did want to put on the table that I very clearly understand the need for transparency and access to the roll. It is a very important part of a democratic process, so I did want to acknowledge that as part of my answer.
Senator McKENZIE: The changes that restricted the ability of community organisations, individuals et cetera to have access to the roll—you have received specific feedback and complaints?
Mr Rogers : Yes, we have. In fact, that is one of the reasons we are off to the Federal Court. There has been a specific complaint lodged about the policies that we have put in place. Again, the outcome of that Federal Court case, I think, will also provide some input into how we are currently conducting access to the roll.
Senator McKENZIE: Have the changes implemented limited or impaired public scrutiny of the electoral roll?
Mr Rogers : Why I threw out the fact that it is before the Federal Court is that I am conscious that what I say here may then go on to influence the outcome of that process. I have chosen my words carefully to say that I am very conscious of the need for transparency and access to the roll. We did put in place some particular measures—I will let Mr Pirani talk about that in a moment—and they were based on a range of legislative and privacy reasons, which is the point that Mr Pirani wishes to make. I am very conscious that whatever the court says and what the JSCEM says will determine our future policies in that area.
Ms Halton : If I can give the senators just a word of advice: I think probably less is more in this space. Whilst I am happy for the officers to answer the question, I would suggest to the officers that they ought to be extraordinarily circumspect in what they say.
Senator McKENZIE: Thank you, Ms Halton. Mr Pirani?
Mr Pirani : There were signs that were placed in our divisional offices towards the end of 2012, which was when the policy changed. For the first time we started to ask people who were coming in to see the roll what the purpose of their inspection was. The AEC has always taken the position that the personal information that is collected for the electoral roll is there for the purpose of the conduct of elections, including such matters as raising objections to the entitlement of other people to be on the roll. That is the primary purpose of collection. That is the issue that is being litigated in the Federal Court in Melbourne, and we are awaiting the outcome of that.
Mr Rogers : Again, I am comfortable with their answer thus far. That might be enough, I think, Senator, on that matter for us.
Senator McKENZIE: I would think it is a particular type of person that would want to go and study the electoral roll, and we will not dwell too long on why they might want to do that. But maybe, so that we can have an understanding—Mr Pirani, you mentioned one reason why people might want to have a look at the electoral roll. What are the other reasons that we might need to have access to it?
Mr Pirani : The other reasons I think are contained in submissions to the Joint Standing Committee on Electoral Matters. If you have a look at the submissions to the joint standing committee, there are numerous submissions that have been made from a number of organisations, including some that are involved in family reunion activities. Others involved in genealogy and those sorts of matters have made submissions to the joint standing committee.
Senator McKENZIE: I am not on that committee; so thank you, Mr Pirani, for enlightening me.
Senator Ronaldson: Given what is before the court, I think the fact that I referred this to JSCEM for their consideration means that you can quite rightly assume that this is a matter that I am acutely aware of—hence the reference to JSCEM.
Senator McKENZIE: I am going to Indi, if I may, and the last federal election. Your probe into the enrolments in the seat of Indi in the 2013 election found that a number of Commonwealth laws may have been breached. Is that correct?
Mr Rogers : We received an allegation. We did an initial assessment of those allegations. The media reports were of 27 possible enrolments where there were some issues that needed to be dealt with. I referred that matter internally to our roll management branch and particularly to the electoral integrity unit. They did initial examination and their report to me was that there were sufficient questions to be answered, such that I felt it was appropriate to refer those matters to the Australian Federal Police. We are not an investigative body, as you know. I felt that that was the best course of action at that time. We did that referral. I am happy for my colleagues to correct me, but that matter still sits with the Australian Federal Police. As you would understand, I am not trying to back out again of this matter—
Senator McKENZIE: Again?
Mr Rogers : Again. But for me to comment on that might also complicate the activities of whatever action the Australian Federal Police decide to do with that. They have not completed that activity, to the best of my knowledge. That matter is still on foot at the moment. But there certainly were sufficient questions for me. It is not a small step to refer something to the Australian Federal Police and for me to take a particular step.
Senator McKENZIE: In terms of that initial investigation that you did, which laws in your view were breached?
Mr Gately : I would characterise it as we formed a view that, rather than a conclusion that laws were breached, there were some concerns about some of the patterns of activity that suggested there may be that view. That is in relation to eligibility in terms of the enrolment of those individuals and whether it satisfied the criteria in terms of residing at those addresses that they claim to enrolment for in Indi.
Mr Rogers : I might also add that—again, without making commentary here that is going to complicate the work of the Australian Federal Police—I referred all of the allegations to the Australian Federal Police. I took that decision because the allegations were made to me as a group. It does not necessarily mean that 27 allegations all had the same number of questions to be answered—that is an inelegant way of explaining it.
Senator McKENZIE: I understand. How did you confirm these enrolments were false?
Senator LUDWIG: I am not sure the allegations were false.
Mr Gately : As I said, we had the information that we are aware of from the roll itself and some further information had been provided as part of the allegations. We considered those in combination.
Senator McKENZIE: What sort of information was that?
Mr Gately : There were a range of things in relation to social media, commentary, tweets, Facebook posts and things like that.
Senator McKENZIE: My understanding is—again, from public newspaper reports, which I am sure the AFP will have access to—that the tweets were about where people lived and worked, et cetera. Is that what you are talking about in terms of information?
Mr Gately : Yes, it is of that nature.
Senator McKENZIE: Can you confirm deletions of tweets include tweets by several of Ms McGowan's closest supporters, who admitted to friends on social media that they lived in Melbourne, despite enrolment records obtained and reported by TheAustralian showing that they had actually switched to Indi?
Mr Rogers : I am uncomfortable answering that question for the reasons that I said before. That really could complicate the work of the Australian Federal Police. I would be worried about us commenting on that matter.
Senator McKENZIE: Are you able to confirm that electoral paper trails reportedly showed that a number of those in the core group of Ms McGowan's supporters enrolled in Indi four to eight weeks before the election? Can you confirm electors' enrolments?
Mr Rogers : This sounds like I am being very unhelpful.
Senator McKENZIE: I am going to keep asking, and hopefully you will get more helpful.
Mr Rogers : Taking the step of referring these matters to the AFP is a very serious matter for us. It is not something we do particularly often. I took the view that the evidence in our investigation showed that there were questions that needed to be answered. Anything I say at the moment may well complicate that process, and I am loath to do so.
Senator McKENZIE: Are you able to comment then on your initial investigation, given that that is what is with the AFP? You will not be commenting on that at all?
Mr Rogers : No.
Senator McKENZIE: So we cannot work out whether the AEC investigation established whether there was evidence of collusion amongst Ms McGowan's supporters?
Ms Halton : Speaking as one who has run a number of programs where I have ended up referring people to various law enforcement bodies, I think the officers are indicating they had sufficient grounds to refer matters to law enforcement. That, of itself, is a significant marker of concern. It is not done lightly, it is not done in the absence of evidence and it is not done for trivial or capricious reasons. I think, beyond that, the officers cannot comment, but you can take it as a clear signifier of very major concerns and what the officers believed to be evidence of substance that there are issues here. I think on any other matters it would be extraordinarily unhelpful of them—Mr Pirani is, I think, nodding—to make any comment, and I will personally not be happy with them if they compromise, in any way, what may now proceed.
Senator McKENZIE: Do we know how long the AFP investigation might take?
Mr Rogers : No, we do not.
Senator McKENZIE: Are you in regular contact with them?
Mr Rogers : Actually, this year we have been in regular contact with the AFP on a range of issues.
Senator McKENZIE: That could either be seen as good or bad, couldn't it?
Mr Rogers : We are aware that the AFP have to apply their own case model to a whole range of referrals. They keep us briefed on progress. We are in contact with them on issues that we refer to them.
Senator McKENZIE: Do you know if the AFP has spoken to the local member, Ms McGowan?
Mr Rogers : I do not know that.
Senator McKENZIE: What are you doing as an organisation to ensure electoral fraud can be prevented and, when it is attempted, it is quickly identified and addressed?
Mr Rogers : I think we are happy to answer that question.
Senator McKENZIE: Fabulous.
Mr Rogers : I am going to refer to Mr Gately to talk about the work of our Electoral Integrity Unit, which I think speaks in that space exactly.
Senator Ronaldson: Just before that, I thank Senator McKenzie for taking on board the comments of the officials at the table about their reluctance to talk about the specifics. You have been told quite clearly by the commissioner that this was viewed so seriously that a referral was made to the AFP. I am grateful that you appreciate that any interference with the proper conduct of the case would be unfortunate. Clearly, given the evidence of the commissioner tonight, this was viewed so seriously that they referred the matter to the Federal Police.
Senator McKENZIE: I think what is unfortunate is an electoral result in the seat of Indi that has quite clearly been tarnished—so I look forward to the AFP's report. If you could forward that, once you are able to, I would appreciate it.
CHAIR: Mr Gately was about to respond to an earlier question.
Mr Gately : I will give you a brief outline of the current work of the Electoral Integrity Unit, why it was conceived and effectively the core of its terms of reference. Effectively we are aiming to assess and enhance the integrity of the AEC's electoral processes. There are multiple elements of that. First and foremost is to develop a framework that describes the AEC's approach to electoral integrity that will cover both the electoral roll and elections themselves, identifying the key dimensions of electoral integrity that the AEC can influence in relation to that model; evaluating risk to integrity and identifying integrity-strengthening and integrity risk mitigation measures; supporting the implementation of new measures to enhance electoral integrity; and communicating the aims and achievements of the program to all stakeholders.
In the initial tranche of work that that group is undertaking, there are three key elements—or four, perhaps, depending on how you break them down. It is establishing that framework, so it is in the process of drafting a framework for internal and external consultation; looking at the fundamentals of the integrity of the direct enrolment process as part of the enrolment program; and also looking at the integrity of the online enrolment channel that we are using, which is a fundamental part of our enrolment program. It is also spending a lot of time looking at the enrolment—
Senator McKENZIE: Sorry, but the online enrolment is where you can basically sign up without anybody checking that you are who you say you are?
Mr Gately : You sign up with evidence of identity and make an assertion as to your eligibility to be enrolled—
Senator McKENZIE: That you are who you say you are.
Mr Gately : just like you do on paper forms and the other forms of enrolment that are in place for our program, as we spoke about at last estimates. I guess the fourth key element right now is looking at enrolment divergence, as was discussed at the joint standing committee last week. That is the initial phase of that team's work. Part of the process of that will be to identify a range of measures that we would put in place to strengthen what is already a robust integrity framework across a range of our activities.
Mr Rogers : Senator, if I could add to that, I appreciate your question. I said in my opening that we are trying to demonstrate that we take this idea of one person, one vote very seriously. It is a critical part of building people's confidence in the electoral roll so that they understand that people on the roll are entitled to be there and that they are exercising that entitlement only once. So I appreciate your question because it is a critical issue.
Senator RHIANNON: I want to go to the case of Mr Cordover and the issue about the source code.
Mr Pirani : Perhaps if we do, I should indicate that the matter involving Mr Cordover is presently before the Administrative Appeals Tribunal and that we would have some limitations on what questions we might be able to answer.
Ms Halton : Or, more to the point, almost nothing can be said.
Senator RHIANNON: Thank you for explaining that. We will see how we go. This was the issue about being a vexatious litigant. I saw the letter from the Office of the Australian Information Commissioner. It is hard to read the date; I think it was 20 October 2014, but I imagine you know the one I am referring to.
Mr Pirani : It is 20 October.
Senator RHIANNON: At the end of it, it talks about the purpose of a vexatious order, but my question goes to the point that they have not agreed with you, so I am interested in your response.
Mr Rogers : I might take that, if I may. Again, Chair, I have to apologise. It seems as if we are trying to obscure this evening, but, where a matter is before the courts, I am very worried about things that we say here that may complicate that process.
Senator RHIANNON: I appreciate that, but is a vexatious litigant also before the courts? I thought that was a separate matter. Is that before the courts?
Mr Rogers : I would prefer to make no comment on any aspect of that matter because the matter is before the Administrative Appeals Tribunal. Anything we say with regard to any part of that process is likely to create complications.
CHAIR: Thank you, Mr Rogers. You have made the legal implications of any conversation about this abundantly clear, as has Mr Pirani. I do not think there is any need for you to apologise, quite frankly, because in your previous appearances here at estimates you have been most forthcoming and we have appreciated the candour in which you have shared with us. Senator Rhiannon, I would suggest that perhaps it might be wiser if you have questions with regard to this particular matter that, rather than keep going through this inability to answer, you might be able to put them on notice and then the officers could respond in an appropriate manner—
Ms Halton : When they can.
CHAIR: when they can, even if the answer is, 'I'm sorry, we can't comment about this at this time.'
Senator RHIANNON: Can I just understand the process?
CHAIR: Of course you may.
Senator RHIANNON: With regard to the appeal, is it before the tribunal at the present time?
Mr Pirani : That is correct.
Senator RHIANNON: When are you back in the tribunal?
Mr Pirani : I do not think I have the actual dates, but my understanding is that no hearing date has been set for this year.
Senator Ronaldson: We will take that on notice.
Senator RHIANNON: There was a comment from the Office of the Australian Information Commissioner, where he said:
The decision to make a vexatious applicant declaration is discretionary … Assuming I was satisfied that a ground existed for making a declaration, a discretionary factor that would count against that step being taken is that the AEC has made a final decision on the three actions.
… … …
For the reasons set out above, I have decided not to declare Mr Cordover to be a vexatious applicant. I am not satisfied that his access actions involved an abuse of process.
Are you saying you cannot comment on that at the present time?
Mr Pirani : The application has been listed for a further teleconference on no later than 27 February 2015 and no hearing date has yet been set.
Mr Rogers : And, as I have said, I will not comment on any matter associated with that until that matter has been before the tribunal.
Senator RHIANNON: Okay, thank you very much. We will come back to that. I want to go to an issue that we have discussed previously at different times—the issue of penalties and the enforcement of disclosure. I think it is correct that there have been no convictions in the past five years. Is that a fair summary; is that about where we are up to?
Mr Pirani : We have had one in relation to an independent candidate in 2010.
Senator RHIANNON: Can you give us any further information, please?
Mr Pirani : I would need to get details of that.
Mr Rogers : We can take that on notice and provide you those details.
Senator RHIANNON: Thank you. I understand that the Director of Public Prosecutions in Queensland found that there was sufficient evidence to pursue a case regarding failure to lodge disclose and that they were actually prepared to issue a summons to start proceedings. Then I think the AEC came in and that you say that the low rate of prosecutions is due in part to weak penalties for offences under the electoral act.
Senator Ronaldson: Are you quoting from something there that might assist the officers?
Senator RHIANNON: I think the officers are well acquainted with this. We have often covered it before. I was just trying to understand—
Senator Ronaldson: I think you are doing a bit more than that. You are effectively quoting some comments. If there is something you are quoting from that you can give to the rest of the committee, we would probably like to see it. I think the officers would appreciate the opportunity to see the article which you may be referring to.
Senator RHIANNON: Chair, I was just going to ask the AEC officers if they could expand on this issue that we have touched on before. I thought it was a fairly straightforward question.
Mr Rogers : I am not aware of the specifics of the case to which you refer at all, I am afraid.
CHAIR: It would assist the officers if you were able to table the document you are reading from. We do not need the highlighted bits; we can just photocopy it and they will not come up.
Senator RHIANNON: It is from one of our reports, and it is from the AEC's supplementary submission, 19.1 on page 3.
Ms Halton : The issue here is that you are asking the officers to comment on something which they have not prepared in respect of. Probably most of them either do not know of it or do not remember it. Regrettably, whilst it might be something you have studied in great detail, none of the officers at the table, I suspect, are intimately familiar with it. If you could table it to assist the officers, that would be greatly appreciated.
Senator RHIANNON: Can we have the discussion now? Chair, previously we have had really good discussions with the AEC officers and I would really appeal to the minister and the secretary to allow us to be able to continue our line of questioning.
CHAIR: It is not up to them to allow the questions to continue. What we have heard is that the acting Electoral Commissioner, who I think is trying to be as helpful as possible, has said that he is unfamiliar with the document. The secretary, who is also trying to be helpful, is unfamiliar with the document and has said that these officers perhaps had no input in the preparation of it. Many of them are occupying relatively new roles. If you are able to table the document, it may facilitate things. However, they still would not have had a great deal of opportunity to absorb it. I am just wondering what we can do to ensure you get your answers. Perhaps, Senator Rhiannon, it may be that the document could be referred to in a question on notice?
Senator RHIANNON: Chair, I would again appeal to you that the AEC officers are very thorough and very knowledgeable. Many of them have been doing the job for a long time. I have asked similar questions in the past and it has never been held up by the minister or the secretary in this way. It is very straightforward.
CHAIR: Senator Rhiannon, I cannot stop you from asking questions. But once again, if you ask questions and the officers say they are unable to answer them or the minister says they will take them on notice, I cannot do anything to facilitate that.
Senator RHIANNON: I understand. I do not actually have that many questions.
CHAIR: So let's get through it rapidly if that is the case. Do you have a question?
Senator RHIANNON: Yes. Mr Rogers or Mr Pirani, has the AEC suggested at any time dealings with the CDPP, or is it your view that the low prosecutions are partly due to the weak penalties for offences under the Electoral Act?
Ms Halton : I am newly appointed as secretary but I need to be very clear. No officers in my portfolio will be giving you opinions on things. It is a very longstanding protocol. They can give you facts, which they are quite able to give you, but opinions are something which under longstanding protocol they will not provide.
CHAIR: Indeed. Under the standing orders, they are unable to give you opinions on matters of policy, and this is a matter of policy.
Ms Halton : Correct.
Senator RHIANNON: I was not asking for an opinion or a view—
CHAIR: Yes, you were.
Senator RHIANNON: I was asking if the low rate of prosecutions was due in part—
CHAIR: I am not being difficult, but you did ask them whether in their view or their opinion it was due to various circumstances. It is inappropriate to ask that question. I rule it out of order.
Senator RHIANNON: I will ask it again. Thank you for correcting it, Chair. Is the low rate of prosecutions that we are aware of due in part to the relatively weak penalties for offences under the Electoral Act?
Senator Ronaldson: I am sorry, Chair. That again is the same situation. It is seeking an opinion. The Australian Electoral Commission is not the determinant of some of those penalties or the law.
CHAIR: I agree with you, but I do want to facilitate Senator Rhiannon. Perhaps one of the easiest ways to do this would be for Senator Rhiannon to submit the question and it could be interpreted in an appropriate manner on notice and you could respond appropriately. I understand what she is trying to get to.
Ms Halton : Senator Rhiannon, one of the things the officers might be able to do for you, obviously on notice, is give you the data on the number of prosecutions. If you wish to form an opinion based on the data, that is absolutely entirely up to you. I am sure the officers would be very happy to oblige in giving you the facts upon which you may indeed form an opinion.
Senator RHIANNON: Secretary and Chair, we have had these discussions previously and it has been on the record for a long time that there is a very low rate of prosecutions and a low rate of convictions. That has been again reiterated tonight. I was looking to take the next step of exploring, which I would argue is a very legitimate and important part of our work, to understand why that might be the case.
CHAIR: Senator Rhiannon, I absolutely agree with you and I have always been concerned about this in the past. But it has never been about their opinions; it has been about the decisions the AEC have taken in regard to mounting a prosecution or not mounting it. I think there has been a very different paradigm, if I may say this, exhibited by Mr Rogers in recent times. However, you are able to continue. I am not trying to be difficult, Senator Rhiannon. I am merely trying to facilitate the standing orders. Ask your question. Would you prefer some time to gather your thoughts and I can go to Senator Ludwig for a moment?
Senator RHIANNON: Yes, if you could do that, that would be useful.
Senator LUDWIG: Minister, have you failed the AEC? When you look at the vacancies right across the organisation, it worries me. It worries me how long they have been vacant for. Can we start with what you have been doing about it? It looked like you promised in July that there would be someone in the chair, and we still do not have someone.
Senator Ronaldson: I am not entirely sure why you would have commenced your question with that, but—
Senator LUDWIG: Isn't that the most serious thing that confronts the AEC at the moment? It needs people in the chair.
Senator Ronaldson: Senator, we have an acting chair in place who is—
Senator LUDWIG: Very competent, no doubt.
Senator Ronaldson: Thank you, and I am glad you can confirm—
Senator LUDWIG: That is why I am referring it to you. I am not—
Senator Ronaldson: Senator, you asked me a question. I am glad that you view Mr Rogers as a very competent officer, and I share your view. Mr Rogers certainly is not letting the AEC down. You are aware of—
Senator LUDWIG: I never suggested that; I worry that you are.
Senator Ronaldson: the number of initiatives that Mr Rogers has put in place. Mr Killesteyn did not resign until 28 June—I think that is the exact date—but there has been an appropriate process put in place and I am going to ask the secretary to take you through that process.
Ms Halton : Thank you, Minister. As the minister has indicated, the former occupant of the position vacated the position at the end of June. I commenced in the Department of Finance a matter of some three or four days later. I think the minister and I met a matter of some days after that. We discussed the fact that there was a vacancy and so, as a consequence of that, commenced on the process. Now, admittedly, it is sadly the case that bureaucracy being what bureaucracy is it does take a while, but I can tell you that following a discussion with the minister and a discussion with the Public Service Commissioner—you understand, this being an appointment which the Public Service Commissioner takes an interest in, I was obliged to discuss with him the process that we were intending to follow. Following that, and with the agreement of the minister and the Public Service Commissioner, I proceeded to select a headhunter recruitment company. That person was duly procured—it is a terrible word. Following that, there was an advertisement. I can tell you—noting the difficulty of getting the panel together because it included the Public Service Commissioner, who wished to be involved—that we have not only advertised we have also interviewed for the position. I can tell you a report has been prepared. That is only very recent, but I can tell you we are making orderly and steady progress in filling the position.
Senator LUDWIG: So a shortlist has not gone up to the minister yet?
Ms Halton : I can tell you that a report has been prepared, but, beyond that, it would be inappropriate for me to comment. I can tell you that since I have been in the role, we have been—Minister, can I say making orderly and steady progress? This is well underway.
Senator LUDWIG: But you can answer whether it has gone to the minister or not, whether the report has been finalised and provided to the minister and is sitting on his desk? You can tell me that, and what date.
Ms Halton : I do not actually have that with me, but I am very happy to give you that on notice. But I can tell you that, following a discussion with the Public Service Commissioner, we have formed a view. And I am happy to give you the dates, which are recent, on notice.
Senator LUDWIG: All right, so you will give me the dates that the report was finalised and presented.
Ms Halton : Yes. And I can tell you that this was recent. By the time I had the conversation, found myself a headhunter, organised advertising—you understand; you have been there yourself. Where are we now, November? By the time I started, the minister and I had our first conversation; this did not start until well after midyear. In my view, given where I started on the process, it has been proceeding in an orderly fashion.
Senator LUDWIG: What I cannot quite understand then is: we knew in February, why did we wait until July?
Ms Halton : I was not there, so I cannot comment on the specifics. But I can tell you from a general perspective, in my experience, it is not normal to, generally speaking, be running a recruiting process for a position where someone has not actually left the position. I was mindful, since I got there, that we had a recently departed officer and therefore a vacant position, which is why I moved when I did.
Senator LUDWIG: Do you say that is standard form throughout the Public Service? It is not my recollection—but I am happy to be corrected—particularly in circumstances where these are very important positions. The incumbent clearly was going to go by July, as indicated in February. I knew Ed quite well; he was—
Ms Halton : As did I.
Senator LUDWIG: in a portfolio that I had. I cannot say for certain, but it is probably why he gave you notice—so that you could find someone in the intervening period.
Ms Halton : I would not want to—
Senator LUDWIG: I cannot ascribe that to him, nor do I, but it just seems that—
Ms Halton : No, and neither can I. Obviously, the former incumbent of the positon is no longer here and I cannot make any comments in relation to that. I can tell you that, in my experience—and you would recall in my last portfolio I had more portfolio agencies than anybody else—it was not my practice to recruit someone to a position if the position was not actually vacant. If nothing else, it could potentially cause embarrassment, let alone be procedurally a fraction difficult. Certainly, in the past, I think there has been, in many instances, more pressure where there was not somebody acting in the role that people did not have confidence in. Now, the reality is that Mr Rogers, I think, has acquitted himself very nicely; people have confidence in him. I cannot speak for the former secretary. I can simply tell you that this is not inconsistent with my experience and I, since I arrived, moved to put steps in place.
Senator Ronaldson: Senator, you are a former SMOS, and I would be very surprised if you took issue with me when I said there is probably no more important appointment to protect those things that you held dear as the minister and that I hold dear as the minister hold dear, and as you and I as citizens hold dear.
Senator LUDWIG: That is what worries me so much.
Senator Ronaldson: Well, I would be more worried, if I were you, if this was a hasty process—
Ms Halton : I agree.
Senator Ronaldson: without due process. This has involved the secretary in a significant chain of events of which I am sure you are probably aware; and both the Public Service Commissioner and appropriate process. There was a panel put together to look at this. It was advertised very, very widely. And this process had to be, as the secretary said, orderly—
Ms Halton : Proper.
Senator Ronaldson: It had to be absolute, totally transparent.
Ms Halton : And proper.
Senator Ronaldson: Because of the nature of the position, apart from anything else, transparency and the perception of transparency were essential. That is why there was this process. Now, you know what the start of the process is and you know what the finalisation of the process requires. This has been an orderly process, and I would have been, quite frankly, more appalled if it had not taken that course of action, which it needed to do.
Ms Halton : And I can tell you, Senator, that one of the reasons in fact why there was a delay between—and I am very happy to give you the dates—the closing of the position and the actual interviewing was that it was absolutely imperative that the Public Service Commissioner was party to this. The combination of the diaries of the interview panel meant that it took us a few weeks to actually convene. But I can absolutely assure you this process has been meticulous and thorough, and the panel, in terms of their views—very recently formed—was unanimous.
Senator LUDWIG: I am pleased to hear that. But it does go back a little bit to my second question, which was: why wasn't it started in February? My recollection is you were appointed before Mr Tune had departed, so it was not unusual—or at least it was announced; you could not have been appointed, obviously. But it had been announced. I could be wrong. I thought I would give you the opportunity—
Ms Halton : My appointment?
Senator LUDWIG: Yes.
Ms Halton : Well, Senator, I think we need to be really clear. I think I was told I was moving to the position on Tuesday, I think it might have been announced on Thursday and I think I might have started the following week, on about Wednesday. I think the minister and I had our first conversation not long after and then I got moving on this. So I can assure you there was no delay on my part.
Senator LUDWIG: No, I am not suggesting that.
Senator Ronaldson: And this was the topic of our—
Senator LUDWIG: It is the same—
Ms Halton : It was our first conversation.
Senator Ronaldson: This was the point of one of the very first conversations—
Ms Halton : One of our first conversations. It was.
CHAIR: One at a time.
Ms Halton : It was.
Senator LUDWIG: The point I was making was—I will try again. Why was the process not commenced in February when you knew that there was going to be a vacancy from July? What caused the delay, or why was there a delay?
Ms Halton : There was no delay.
Senator Ronaldson: There was an incumbent. There was no interference with the workings of the Australian Electoral Commission. After Mr Killesteyn left and Mr Rogers was appointed, there was a continuity of leadership within the organisation. Once that was put in place then the proper process and due process for a full-time appointment commenced. As you would be acutely aware, Senator, in light of events over the last 12 months the restoration of the public's view of the Australian Electoral Commission is absolutely vital. If there was a process that was viewed by the community as not being thorough and exhaustive and a due process then that would detract from the endeavours of the Australian Electoral Commission to address some of those public perceptions. I think this is the most important appointment process that I have been involved in in my time as minister. I wanted to ensure that the confidence we need to restore was not in any way destroyed by a process that the community viewed was not valid and was not due process and was not transparent.
Ms Halton : Let me indicate in that respect that I think it was literally in our first conversation when I arrived in the position. One of the things I actually said to the minister was, 'We need to move on this.' He agreed entirely. The reality is that my predecessor—it was clear he was going for a while previously. It would have been inefficient for him to undertake this process. I said to the minister, 'I like to do these things in a very thorough way and therefore my intention is that I will have a proper search process. It will be widely advertised and then we will go through'—I loathe the term—'a thoroughly proper beauty contest.'
Senator LUDWIG: Just so that I do not misquote you: you decided, once you received his resignation and he went on personal leave until 4 July, that you would wait till 4 July, or the 5th, as the case may be, before you would commence a process to look for a replacement? He was not in the AEC because he was on personal leave, and Mr Rogers was then appointed as the acting from February. Have I got that right? Is that right, Minister?
Senator Ronaldson: That is my recollection of the timing of Mr Killesteyn's departure and the appointment of Mr Rogers. I do not want to give you information that is incorrect. I will get those definite dates for you.
Senator LUDWIG: I just wanted to make sure I was right.
Senator Ronaldson: Clearly you are trying to make a political point here, but I am not entirely sure what it is. I would have thought, as a past SMOS, that you would be as acutely aware as I am of the pivotal importance of this position. It had to be a detailed and substantive process. That was done by the new secretary.
Ms Halton : And the Public Service Commissioner.
Senator Ronaldson: And the Public Service Commissioner as well. I am at a bit of a loss, I am afraid, to see what the political point is. You acknowledge that the acting commissioner is very competent, so there has been no risk to the organisation. I am just a bit lost as to what your political point is.
Senator LUDWIG: As I said, I was just making sure I was accurate. You can think what you want as to whether it is a political point. I just wanted to know the facts. As well as the Electoral Commissioner position being vacant there is the non-judicial member. Is that still vacant?
Senator Ronaldson: As you know, by convention that is the statistician. I do not appoint the statistician. In relation to when that appointment might be, I am happy to take that on notice for you. There has been an acting statistician. It is not as if the position has been vacant.
Senator LUDWIG: Have you asked or asked the secretary to ask when that position will be filled?
Senator Ronaldson: This is not a matter that I am involved with.
Ms Halton : Nor am I.
Senator LUDWIG: So that I am clear about this, you have not asked? It is a statement of fact.
Senator Ronaldson: We are just sort of niggling away at the edges here. By convention, the statistician is the member you are referring to. It is my intention, once there is a new appointment, to then abide by that convention and do so very happily. I think it is important convention. I think the statistician there adds significant value to the AEC. I am not making the appointment. There is someone there at the moment. I note you have not made any references to their bona fides or effectiveness, so I will take it from that that you are not unhappy with the role that is being played. When there is a new statistician appointed, then it would be my intention that—and I am happy to place this on the record—the convention continues. Over and above that, I have got nothing further to add to that.
Senator LUDWIG: Is the acting statistician fulfilling the role as the non-judicial member?
Mr Rogers : No. I am not sure who is the acting statistician. I would say to be helpful that the commission has a full quorum and is acting as a full commission.
Senator LUDWIG: But the position is vacant. There is no-one sitting in that job. That is right, isn't it?
Mr Rogers : That is correct.
Senator LUDWIG: For how long has no-one been sitting in that job?
Mr Rogers : Since the departure of the statistician. I would have to check those dates for you.
Senator LUDWIG: The minister has not enquired as to why no one is sitting in that job?
Mr Rogers : I think the minister answered that before, from my perspective. The commission is constituted with a quorum and it is doing all of its work the way that it normally would. The manner of the appointment of the third member is a matter for government and certainly not for me. I could not comment on that matter.
Senator LUDWIG: Then the Western Australian electoral officer resigned? Is that right?
Mr Rogers : That is correct.
Senator LUDWIG: What date did he resign?
Mr Rogers : I do not have that in front of me, but I will take that on notice. I do not want to give you the wrong information.
Senator LUDWIG: I accept that. I will not press you for it. The Queensland and Northern Territory electoral offices are vacant as well. For how long?
Mr Rogers : That is correct. I might, just to be helpful, let you know that we have an acting person in the Western Australian role and we deliberately put them in there for that period. You can imagine it that is a particularly rough journey in Western Australia, given the incidents that occurred over there. We put probably our most experienced electoral manager over there as the acting state manager deliberately for a period to help settle the process and make sure that we are on sound footing for the next election.
Senator LUDWIG: When did that position become vacant?
Mr Rogers : Again, if you allow me to provide you those dates, I will take that on notice.
Senator LUDWIG: Thanks. That applies to both Queensland and Northern Territory electoral offices too, as to when they became vacant. Do you do the search for them? Do you do the appointment or is it a ministerial appointment?
Mr Rogers : We do an initial process and then we provide a recommendation.
Senator LUDWIG: Where are you up to with those positions? Do you do the non-judicial member too or does the department—
Mr Rogers : Not at all. That is a matter for government.
Senator LUDWIG: That really is a function of when the statistician is appointed?
Mr Rogers : That is correct.
Senator LUDWIG: But until that time it remains vacant.
Mr Rogers : Correct. Again, I am deliberately stressing that the commission has a full quorum that is—
Senator LUDWIG: I acknowledge that.
Mr Rogers : I do not want to give the impression that there has been any either diminution of work or the role, because there has not been. As to your other question, that is also a process that we have been going through. We have held interviews for those positions. As the minister said in regard to the commissioner's role, the state manager positions are exceptionally important. In fact, one of the recommendations in the Keelty inquiry was ultimately for an examination to be done on the statutory nature of those appointments. Mr Keelty had a particular view. I am conscious that when we make an appointment to one of those roles, it is a five- or seven-year appointment. We need to make sure that it is absolutely right. I do not want to provide a recommendation until I am sure that it is absolutely right. That is a process that we are also taking our time over to make sure we get the right person for the role.
I also wanted to say that I have full confidence in the individuals that we have in the acting positions in those states. There is no indication that there has been any diminution of activity, supervision or leadership. So I am very confident in the tender we have in place at the moment.
Senator LUDWIG: I am not casting any aspersions on their competency or your ability to manage. I am just wondering what the minister has been doing. Have you put any of these up to the minister at this point in time or are they still in an internal process?
Mr Rogers : I have not. They are with me at the moment.
Senator Ronaldson: You would be aware that I am getting some recommendations from the commissioner.
Senator LUDWIG: That is why I asked.
Senator Ronaldson: I am part of the process. When I get those recommendations, they will be looked at accordingly.
Senator LUDWIG: Have you inquired as to when they are likely to come forward to you?
Senator Ronaldson: I am aware from Mr Rogers that he has been going through a process. Once that process is finalised, he will provide me with the recommendations presumably.
Senator LUDWIG: The term of position of the Hon. Peter Heerey AM QC as the chairperson of the commission was extended. Am I right about that? It was due to finish, and then it was provided with, as I understand it, an extension. Is that right?
Senator Ronaldson: I have had some discussions with Mr Heerey. Yes, there was an extension. I think, from recollection, it was until the end of January.
Senator LUDWIG: Are you looking for a replacement or are you going to wait until the end of January?
Senator Ronaldson: You may well be aware that these appointments come on the recommendation of the Attorney, via the Chief Justice.
Senator LUDWIG: Yes.
Senator Ronaldson: That process has commenced. It is not like the appointment of an acting commissioner. If there is a requirement for me extend Mr Heerey's term then that is a discussion that I will have with him at the appropriate time.
Senator LUDWIG: What concerns me most is that at the additional estimates in February you stated that the position of the Electoral Commissioner would be filled by 4 July 2014 and—
Senator Ronaldson: What was the full quote?
Senator LUDWIG: Let me get it out.
Senator Ronaldson: I will give it to you.
Senator LUDWIG: Please.
Senator Ronaldson: I am surprised it was not in your question. It should have been. I said that I would do so if humanly possible. It was not humanly possible after discussions with the new secretary. There was a very significant process that needed to be followed. The secretary wanted to involve the Public Service Commissioner. At her urging, I accepted that. That was another layer in this process. It was good advice. It was appropriate advice. As I said to Senator Wong, if it had been humanly possible it would have been done. Well, it was not humanly possible for a number of factors, including the secretary's very, very strong and specific advice to me that she wanted to involve the Public Service Commissioner in a process that she and I viewed as a very serious one, one that needed to be fully canvassed, with due process and a level of transparency that could not be questioned by anyone.
CHAIR: Minister and Senator Ludwig, the committee is scheduled for an evening tea break at 9.15. I suspect we might be able to forgo that and conclude questions relatively promptly.
Senator RHIANNON: I have quite a few questions.
CHAIR: I know you do, Senator Rhiannon. I am just thinking that we might be able to deal with those—
Senator LUDWIG: I am happy to keep going through and see where we end up.
CHAIR: Okay, if you are happy with that, we will continue now. Senator Ludwig.
Senator LUDWIG: Thank you. The following roles are currently occupied or vacant: the deputy electoral commissioner?
Mr Rogers : Mr Kitson is the acting deputy electoral—
Senator LUDWIG: Yes, I noticed that. That is why I thought I would just check. The position is vacant and we have an acting, is that right?
Mr Rogers : Senator, my substantive role is as the deputy electoral commissioner.
Senator LUDWIG: I know.
Mr Rogers : As I am acting as the electoral commissioner, Mr Kitson is now acting as the deputy electoral commissioner.
Ms Halton : The position is not vacant, it is actually occupied by Mr Rogers. Mr Rogers is temporarily doing other duties, therefore, it is another officer. So I think it is unfair to characterise the position as vacant.
Senator LUDWIG: I will take that criticism. The first assistant commissioners, the two positions?
Mr Rogers : Mr Carpay, who sits before you, is the substantive first assistant commissioner.
Senator LUDWIG: Do we have a second, or a first, second assistant?
Mr Rogers : Mr Courtney is acting behind Mr Kitson, who is acting as the deputy electoral commissioner, so the positions are not vacant. We have just backfilled.
Senator LUDWIG: So there is one. There is one deputy and one first assistant that are in acting roles.
Mr Rogers : They are in acting roles, but the positions are filled, yes.
Senator LUDWIG: They would not like them to be taken away from underneath them.
Ms Halton : They would probably be quite aggrieved, Senator, and they might have reason.
Senator LUDWIG: Yes, I am sure, all going well, they would like to hold onto them.
Ms Halton : Indeed.
Senator LUDWIG: Then, the chief financial officer, do we have one of those?
Mr Rogers : The chief financial officer left—
Mr Kitson : The chief financial officer, I believe, left in August this year and was replaced on a temporary basis by an acting chief financial officer.
Mr Rogers : I will check the dates for you, Senator, as I do not want to give you the wrong dates.
Senator LUDWIG: Mr Pirani, are you the chief legal officer?
Mr Pirani : That is correct, Senator.
Senator LUDWIG: So you have not gone anyway.
Mr Pirani : No, Senator.
Ms Halton : I think the technical term is 'longstanding'. Am I not right?
Senator LUDWIG: I am pleased to say that.
Ms Halton : I think you could actually say that he is rusted onto the place.
Senator LUDWIG: It is good to see that we have some steady persons in the ship.
Senator Ronaldson: I think there are many steady persons in the ship, Senator. You may not have meant to have put it that way, but that is probably the way Hansard would record it. There are many, many steady people there. The process to appoint the commissioner will be finalised as part of the due process that has been undertaken by the secretary. At that stage I am sure the new commissioner will be in a position to make appointments as appropriate. So, they are steady, and the organisation is responding, in my view, very, very well.
Mr Rogers : Senator, I know that you would expect me to say this, so allow me to say it. When I took over as the acting commissioner I said to the team that we have around us, 'We will not conduct ourselves as if we are in an acting role. There is such a job of work in front of the AEC that we are, to all intents and purposes, substantive. We will take every decision that we need to take to right the ship and ensure that we move forward from what occurred in WA.' We have been very, very clear on that with everybody.
Senator LUDWIG: Thank you. Chair, I was going to go into a different area.
CHAIR: We might give you a bit of spell, Senator Ludwig, and we will go to Senator Rhiannon.
Senator RHIANNON: Thank you, Chair. Is it correct that every political party and its associated entities are generally reviewed once in a parliamentary cycle, and that the AEC issues a compliance report on its findings following this review?
Mr Rogers : We have a risk based compliance matrix that we apply to who we review and when, and we rotate through a number of different entities. We try and give maximum coverage to as many as possible. You will understand that there is a limit to how much any organisation could do in that regard, but we do have an established matrix that we developed that we look at, and then we work through that matrix methodically and look at those entities.
Mr Pirani : That was a previous practice of the AEC. It was reviewed by the former Ombudsman Ron McLeod in 2012, and Mr McLeod made a range of recommendations concerning that practice which has led to it being reviewed.
Senator RHIANNON: So you have now changed it?
Mr Pirani : That is correct.
Senator RHIANNON: If problems are identified, can you then ask for a new compliance report to be done?
Mr Pirani : If information is brought forward to the AEC, we will always consider it and determine whether we need to do an investigation. We used to have this difference in language between an inquiry, where we would be requesting information from an organisation to satisfy any concerns, as opposed to an investigation, where we have formally issued a 316 notice requiring the provision of information. But, certainly, yes, if we have concerns that arise from a compliance review, that can end up with a record amendment of a return under section 318 of the act.
Mr Rogers : And if things do emerge in the process of our investigations, that also impacts on the compilation of the next risk based compliance review matrix. So we use that information that comes forward to inform ourselves about what we would include in the next series of events.
Senator RHIANNON: So with these changes resulting from the Ombudsman's review, does the AEC now have the power to conduct compliance reviews of candidates in Senate groups? I understand you did not before.
Mr Pirani : There has been no change to our legislation.
Senator RHIANNON: So that is legislation?
Mr Pirani : It is the issue about the scope of section 316 of the Electoral Act. One of the provisions there says that we have to have 'reasonable grounds' before going into issuing a compulsory notice to produce information to us, and yet, for candidates and parties, we do not have to be satisfied with the reasonable grounds test. It is the difference between section 316(2), and section 316(2A), which are the two provisions that I think you are referring to.
Senator RHIANNON: Can you also comment on that with regard to independent members, as to how you are now viewing the act with regard to independent members?
Senator SMITH: Can I just jump in for one moment as Mr Pirani gathers his thoughts? The McLeod review was a review set up by the AEC itself, and it did not recommend changes to legislation. The legislative framework remains intact; it was actually how we were conducting ourselves, our internal processes, and the way in which we fulfilled the funding disclosure function within the AEC. The legislative framework, Mr Pirani, unless I am incorrect, remains exactly as it was. The McLeod review was wholly an internal review of that process.
Mr Pirani : The relevant provision, section 316(2A), states:
An authorised officer may, for the purpose of finding out whether a prescribed person—
which is defined earlier on in the act—
the financial controller of an associated entity or the agent of a registered political party has complied with this Part, by notice served personally or by post …
But then, when we get to 316(3) and 316(3A), we have:
Where an authorized officer has reasonable grounds to believe that a person is capable of producing documents or other things or giving evidence relating to a contravention, or possible contravention, of section 315 …
then we can serve a notice. So section 316(3) is not limited to which persons, if we have reasonable grounds. Section 316(2A) says that we do not need reasonable grounds to those categories that are listed there.
Senator RHIANNON: I have just got to get my head around that. Am I correct in taking from that that in fact the reviews can cover any candidate or any member of parliament—
Mr Pirani : If we have reasonable grounds—
Senator RHIANNON: If you have reasonable grounds.
Mr Pirani : then we could use the section 316 or section 318 power.
Senator RHIANNON: Okay. Thank you for clarifying that. I will move on to the other ones. This is about amended returns. I was interested in your process for when an amended return comes in. We all can make mistakes, and a lot of amended returns are mistakes that are picked up in addresses, amounts et cetera. But do you have a review process for amended returns? If there is something really out of ordinary, as in all of a sudden somebody finds $1 million that they had not disclosed, there is a story in the media about something that looks untoward or ICAC starts talking about money being funnelled from state to federal—does anything trigger you looking at amended returns? I imagine you cannot look at all of them. How does it work when they come in?
Mr Rogers : I might start that answer off. First of all, if I could deal with the ICAC issue. During the last hearing I made a statement that I would like to reiterate, and that is that I am not bound, the commission is not bound, by the outcomes of the ICAC, which is essentially a state based organisation. But of course we will consider the outcomes of the ICAC and, if there is anything that emerges from that process, we will ensure that we do whatever we need to do to deal with those issues in accordance with the Commonwealth Electoral Act. However, until that time, I am not going to make any comment about any matter that is before the ICAC, for obvious reasons, Senator. It would be inappropriate and it would also complicate the work of the ICAC itself. I am not sure when the ICAC report will be handed down; I do not think it is this year. But it will be next year at some stage, and at that point we will then examine those matters for the ICAC. So I wanted to deal with that first before any AEC officer made a comment about that, because I do not wish to, for a whole range of reasons.
The second comment I would like to make is that one of the key outcomes that the act seeks to achieve is disclosure. So, in itself, an amended return is part of that process of achieving disclosure; and, when disclosure is achieved, to me, the overall purpose of the act has actually been achieved. So that is the important part of that process. As you know Senator, as is allowed under the act, from time to time, parties make amendments. In fact, parties from all sides of parliament have made amendments from time to time. We accept those amendments and publish them after we have accepted them. I am now looking to Mr Pirani, but I think that is the process that we go through.
Mr Pirani : Sorry; I said section 318 earlier; it is section 319A, which is the amendment of claims and returns. Some amendments are fairly small; others can be quite large. There was a notable one several years ago involving a union in New South Wales where the financial controller of the union had been on leave. The person who put in the return did not understand the MYOB system that that particular union had used, and it turned out they were out by several million dollars. So, yes, we looked at that; yes, we said 'please explain'; and, yes, that is that sort of risk factor we would be looking at—whether the financial controller was actually knowledgeable of what the requirements are to do a return under the Commonwealth Electoral Act. That is a factor that goes into a risk matrix that we would be looking at.
Senator RHIANNON: So is there a certain amount above which, if included in amended returns, then triggers you asking questions?
Mr Pirani : I believe I did answer this for you at the last estimates. It is not a set amount. It is proportional. You look at whether it is material in the overall scheme of things.
Senator RHIANNON: So amount can trigger it. Also, I was interested in media reports, and one that comes to mind was coverage by The Guardian recently where they compared declarations made by donors to declarations made by political parties, and they found significant discrepancies between the two.
Mr Pirani : I also answered this at the last Senate estimates. You cannot compare donor returns and returns of political parties and associated entities because the criteria are different.
CHAIR: It might be helpful, if questions have been covered previously, Senator Rhiannon, that they are not re-asked.
Senator RHIANNON: I agree with you. I appreciate the AEC has to obviously live within the law that we have, but it is something that is obviously relevant because it is so hard to have clear transparency and accountability when the information that is before the public is so inconsistent.
Senator Ronaldson: That is a comment made by you.
Senator RHIANNON: But it is actually a fact.
Senator Ronaldson: It can only be viewed as a comment.
Senator RHIANNON: But, Minister, this is where you bring no credit. Really we should be on the same page here, of trying to bring consistency here. In eight of the 11 cases, about the National Party and the Liberal Party and your donors, the party branches declared the donations but said they came from a different entity to that listed on the donor declaration. My question goes to: that information is in the public domain and I was interested in when the AEC—I assume somebody reads this; would that trigger them to then further look at the discrepancies and the issue of amended returns? I think that is a fair question.
Senator Ronaldson: I think that has been answered a number of times too.
Mr Pirani : My recollection is we did answer that in a question on notice. We took it on notice from you last time. I am just trying to see if we can find the actual number of the question on notice, where we specifically commented on the Guardian article and that we had made an inquiry into one aspect of it and we disagreed with the conclusions that had been reached in that article.
Mr Rogers : While Mr Pirani is also dealing with that, I might just point out that we do, to an extent, monitor relevant media. But I do not want to give the impression that we are reading every newspaper in Australia and jumping at every story that might pop out, because it would just be not a good use of Commonwealth resources. Where specific things come to us, of course we action those matters.
CHAIR: Whilst Mr Pirani is looking, Senator Rhiannon, perhaps you could ask another question.
Senator LUDWIG: I could jump in.
CHAIR: Or we could go to Senator Ludwig while you gather your thoughts, Senator Rhiannon.
Senator RHIANNON: Yes. Thank you.
Senator LUDWIG: I just wanted to follow up some of Senator Rhiannon's questions. Bearing in mind that there are always sensitivities around these issues, I will start with the issue and then we will see what we can say. The first one was the Free Enterprise Foundation. I think at budget estimates in February the AEC stated that they are monitoring the proceedings of the independent commission. What can you say, if anything, about that particular issue?
Mr Rogers : I do not have my transcript in front of me. I think I did say, specifically in relation to the Free Enterprise Foundation, that it had been mentioned in the Independent Commission Against Corruption and that I was loath to comment on that matter until the end of that process. I can tell you that we have actually done compliance investigations previously on the Free Enterprise Foundation and no adverse comments were made in respect of disclosure obligations. I think I made that comment at the last hearing as well. Other than that, I am unable to comment again. I think, to be fair, I gave Senator Faulkner and Senator Dastyari a commitment at the last hearing that we would review the outcomes of the ICAC hearing. I gave them a commitment that if there were anything there that triggered an obligation under the Commonwealth Electoral Act, I would take appropriate action. That commitment stands.
Senator RHIANNON: I just have one question that relates to this. Thank you for clarifying about the ICAC. Are you just going to be relying on the findings of ICAC? You will not be looking at the evidence and the implications for federal disclosure and things like that? We have the two issues. I took from your previous answer that you would be relying on the findings, the final report, of ICAC to determine—
Mr Rogers : No. That is not what I said. I want to be very clear with this. In fact, I made the comment that I am not bound by the outcomes of the ICAC report so I will not be relying on that report. But we will examine that report to see if any obligations are triggered under the Commonwealth Electoral Act.
Senator RHIANNON: In your answer you have just talked about the report, but there is this huge body of evidence, much of it very relevant—
Mr Rogers : And much of it contested.
Senator RHIANNON: Yes. I am not disputing that at all. I am just trying to understand if you will be looking at the body of evidence or just the report and the findings and the recommendations to make your determination of the next step.
Mr Rogers : I would have to check my evidence. I do not want to mislead you. But I think I said that I would look at the outcomes of the ICAC process—and I was trying to be as broad as I possibly could—to see if there are any obligations. I gave a commitment to members of this committee that I would do so. I am not resiling from that. I think I have been very clear that that is the process I intend to follow, but I do not intend to do that until the outcomes of that process, the ICAC process, are complete.
Senator RHIANNON: That was clear. What I am taking from that is that, when you say 'outcomes', it sounds like it is the ICAC report and the recommendations, not the body of evidence. It doesn't matter?
CHAIR: I think the report will reflect the body of evidence.
Mr Rogers : That is kind of where I am heading. Again, I am really uncomfortable talking about the ICAC process and anything that is before the court. I have tried to be quite up-front about that. I am not trying to hide or obscure anything.
Senator RHIANNON: Fair enough.
Mr Rogers : But anything that is a judicial process—
Senator RHIANNON: And we are just trying to understand.
Senator Ronaldson: Senator, there have been three or four occasions tonight where you have actually re-asked your own questions, including questions on notice. If you did not remember that you had asked those, that is one thing. But retesting the evidence given by these officers, particularly in relation to questions on notice, I think is really pushing it a little bit too far. It may be that you forgot that you had asked those questions; and, if so, that is fine. But if you were aware you had asked them and you were aware of the answers, quite frankly, I do not know whether it is appropriate to run that past again to see if you can get another answer.
CHAIR: Thank you, Minister. I do not think we need to revisit that. I think the point is very well made.
Senator RHIANNON: It is nine thirty at night. Thank you very much, AEC.
CHAIR: Senator Ludwig, you have had your evening tea, but I wonder whether others would like a tea-break. Are you close to finishing?
Senator LUDWIG: Very close. Is Foundation 51, which I think appeared in the news, in the same boat or is that a slightly different issue?
Mr Rogers : I think Foundation 51 is not a matter before the ICAC. As I understand it, Foundation 51 is an issue pertaining to an organisation in the Northern Territory.
Senator LUDWIG: Yes.
Mr Rogers : At great risk of sounding like a broken record this evening, that is a process that is on foot at the moment within the AEC.
Senator LUDWIG: No. I was referring to whether it is in the same boat. It is not in ICAC but it is on foot, and you really do not want to comment any further about it—
Mr Rogers : That is correct.
Senator LUDWIG: and you will let me know when you can.
Mr Rogers : In the fullness of time. Absolutely.
Senator LUDWIG: I am happy with that.
Senator Ronaldson: I think there was a complaint that was received from the Labor Party—was it?
Mr Rogers : I think that complaint may have come from a couple of different sources, Minister, but, yes, essentially.
Senator LUDWIG: On your website, do you publish the results of investigations—that is, complaints have been made, complaints have been handled and complaints have been dismissed or referred? Is that what you do?
Mr Pirani : There is an area on our website that has special investigations, and, yes, we do publish those results. However, you would appreciate of course, if a matter were to go to the AFP or DPP, we would have to await the outcome.
Senator LUDWIG: You will not say the matter has been referred to the AFP?
Mr Pirani : Probably not.
Senator LUDWIG: For obvious reasons! You have hung them already! Yes. So, if I want to ask the question, I should ask it here, and then you can take on notice: what is the number of investigations that are currently on foot, or how many have been referred to the AFP or other law enforcement agencies?
Mr Rogers : I am happy to take the question, and we will consider what information we can give you back that does not—
Senator LUDWIG: Yes, I was not asking for it now. I thought you might want to do exactly that and consider how much you can answer. I think that is a wrap for me, thank you, Chair.
CHAIR: I have one question—it is an indulgent question. With the disclosure regime, is the time limit for disclosure of donations to political parties set legislatively, or is it by regulation?
Mr Pirani : It is in the act.
CHAIR: It is in the act. Thank you very much. If we want to alter it, it has to go through the act?
Mr Pirani : That is correct.
Mr Pirani : On an earlier matter, the question on notice that was asked by Senator Rhiannon was F100.
CHAIR: Thank you very much. I thank the officers of the AEC, the secretary, the minister, honourable senators, the secretariat and Hansard.
Committee adjourned at 21 : 39