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Finance and Public Administration Legislation Committee
Australian Electoral Commission

Australian Electoral Commission


CHAIR: I welcome Mr Tom Rogers, the Electoral Commissioner, and officers of the Australian Electoral Commission. Mr Rogers, do you wish to make an opening statement?

Mr Rogers : No, I don’t, thank you.

Senator RHIANNON: We have just had 1 February, our big day of the year, when we learn about donations over the previous financial year. I notice that there was a new term used: 'subscription to a political party'. Has that term been used before?

Mr Rogers : I am not sure whether we used that term before. I might just ask Mr Pirani to see whether in fact that is a new term or one that has changed. To my mind, that is not something we have discussed as using a new term.

Mr Pirani : I am unclear about what the context is when you say 'we' have used a new term.

Senator RHIANNON: Good point. When you look at the disclosure, I only saw it for Labor's. In Labor's disclosure they listed a number of donations as 'subscription', and I have never seen that term before. I have seen the term 'donation' and I have seen the term 'other receipt' but not—

Mr Pirani : The definition of 'gift' in section 287(1) of the Electoral Act at paragraph (b) does not include an annual subscription paid to a political party, to a state branch or to a division. So the definition of 'gift'—which loosely, in the forms that they fill out, equates to a donation—does not include subscription. So all I can assume is that the Labor Party has chosen to put subscriptions in as a means of some form of additional disclosure. But it is not a gift; therefore, it is not a donation as defined in the Electoral Act.

Senator RHIANNON: Has it been used before?

Mr Pirani : I am not aware of that. I would have to go back and look through all the returns.

Mr Rogers : We will take that on notice because we do not know the answer to that today.

Senator RHIANNON: Could you take it on answer and give a full answer. Did you give Labor advice that they could use that term? Once you received their disclosure and you saw the term, did you then question Labor about what it means?

Mr Rogers : I am not sure; we will have to take that on notice.

Senator RHIANNON: I understand that. I have 11 donations here and over half a million dollars in subscriptions, and the word 'subscriptions' was, for example, used with: '$66,000 from ClubsNSW' or '$110,000 from Woodside Energy'. I think we have a broad idea what the word 'subscriptions' means. Do you question what it means in terms of a political donation disclosure?

Mr Rogers : I think there are two questions there. If you are asking, 'Did we?' I shall take that on notice because I am unsure about whether we have done that or not. The second part of the question is: would we consider that something that we would ask a question about? Not necessarily. The parties submit their disclosure returns. It is an annual process. Clearly, where we see something that is in error we might ask questions about the error and we might probe further, but just because there is a particular use of a term it does not automatically mean we would probe that. But I will ask my funding and disclosure staff whether or not we asked Labor any questions about that.

Senator RHIANNON: Did you ask the companies if they viewed it as a subscription?

Mr Rogers : I will take that on notice, but I will almost guarantee that we did not check with the companies. We look at the donor returns. We try and match the donor returns with the party returns. Mr Pirani might have a different view here, but we would not normally contact the donors over the use of particular nomenclature or terminology.

Mr Pirani : Without knowing the specifics of the particular use of the word 'subscription', it does raise the issue about fundraising events et cetera when people buy a table. Quite often, we get a discrepancy between what the party has reported and what the donor reported, because they do not have a meeting of minds as to what the purpose of the expenditure was. In those cases, we have asked questions—particularly when we do a compliance review of the actual returns of the political parties.

Senator RHIANNON: I appreciate that you have to take it on notice, but from the answer that you have given it appears that you think they have used the term 'subscriptions' because it is not a gift. Does that mean when another party fills out its—

Mr Rogers : We are now speculating about what the ALP may or may not have done, and I am very uncomfortable with that. I would prefer to take that on notice.

Senator RHIANNON: Okay, fair enough. We now have this new term. If another political party put down that it received money as raffle tickets, that is not a gift, it is not a donation and it is not a subscription—it is raffle tickets. Would you accept that? What is your internal process in terms of how you handle these disclosure forms when they come forward, with parties now using new ways to describe money that they receive?

CHAIR: Can I just jump in on this. Wasn't there a precedent in regard to raffle tickets, with Nick Bolkus selling raffle tickets all to one individual, or something?

Senator LUDWIG: Yes.

CHAIR: I think that was true.

Senator LUDWIG: Yes. I think he won the defamation case.

CHAIR: This is not on defamation; I am just asking if there is a precedent about selling raffle tickets to one person.

Senator LUDWIG: I am just pointing out that he might have won the defamation case.

Mr Rogers : This is moving into difficult areas. I am not sure exactly of the incident that you are referring to. Mr Pirani, I don't think, is either. So I think I would prefer to take that question on notice.

CHAIR: I will not mention it outside of privilege!

Senator RHIANNON: So that and the terminology—both of the questions that we put on notice, about the issue of terminology and also how you handle these disclosures when they arrive. We have political parties now describing it in ways that we were not aware could be done.

Just staying with disclosure, I did want to ask about the forms. At the moment, my recollection is that on the forms you require the mobile number, an email and a postal address. Is that correct?

Mr Pirani : We require a telephone number, a fax number and an email address.

Senator RHIANNON: No street address?

Mr Pirani : Sorry—postal address.

Senator RHIANNON: Yes. It is down there as a mobile number, isn't it?

Mr Pirani : Not on the form that I have in front of me which is a 2014-15 return. There is no mobile phone number.

Senator RHIANNON: But my point is: you have email there. I imagine that 10 years ago you may not have had an email address down there, so, clearly, the AEC would be responsible and update forms as means of communication change. My question is: as this is to provide information about the disclosure donor, have you considered including in that that the donor identifies their major commercial interest if they are an individual and any position they might have?

Mr Rogers : No. I can answer that: we have not considered that. That would be a policy matter that would have some implications, I suspect, for particular donors who may decide to then alter their pattern of donation to the parties. I am sure that the parliament would have views on that beyond just the AEC introducing administrative change.

Senator RHIANNON: Why do you say that is a policy matter when you are obtaining information that you have varied in the form over the years—you ask where a person lives and who they are, et cetera? Isn't that within the course of the information one would require to have a disclosure form?

Mr Rogers : I do not think so. We might have to disagree on this one. The amendments to the form that we may or may not have had are simply about identity—about telephone number and address—rather than purpose or commercial activity, which I think, potentially, might have a chilling effect on the activities of donors. That would be a matter for parliament rather than for me, I think.

Senator RHIANNON: Chair, could you go to somebody else, and then I could come back?

CHAIR: I will, Senator Rhiannon. Just for the benefit of the committee, we do have a hard marker at 12.30, because the minister has to be somewhere else. So we have to share this around a little bit. I am going to go to Senator Smith, then to Senator McAllister and then back to the Greens.

Senator SMITH: Thank you very much, Chair. Mr Rogers or Mr Pirani, I am just curious to know: the law is quite clear in terms of someone that gives false information as part of their enrolment—that is, giving a false name or address. But I am keen to understand how the law works should someone give false information when they go to participate in the vote—that is, when they go into the polling station and give false information. How does the law work in regard to that?

Mr Rogers : So I understand, would you be referring specifically to someone coming in and being asked one of the three questions that we are required to ask an elector, and that elector deliberately providing erroneous information?

Senator SMITH: That is right. So they are asked their name and address, and if they have voted previously.

Mr Rogers : Let me start with the consequences. When we detect multiple voting, some actions then result from the activity of multiple voting. If that activity—of the elector telling the polling official false information—led to multiple voting, that would trigger a range of requirements.

Senator SMITH: But that is post, isn't it?

Mr Rogers : That is right. Mr Pirani might have a view about whether that would constitute a false declaration to a Commonwealth official.

Mr Pirani : I note that we have been asked this question previously—not in the committee.

Senator SMITH: Not by me.

Mr Pirani : My response to that is we do not administer the relevant provisions in the Criminal Code Act 1995, which are sections 135 and 136. It is really a matter for the Attorney-General's Department to give advice as to the possible offences. Under our act there are offences in relation to false enrolments, as you have said, and there is an offence for multiple voting. But the general offence of providing false information to a Commonwealth officer in the performance of their duty is a matter that is in the Criminal Code Act, and that would have to be where such advice was obtained is on the department that administers it, which is the Attorney-General's Department, not us.

Senator SMITH: Have you ever sought that advice from the Attorney-General's Department?

Mr Pirani : No.

Mr Rogers : As you mentioned, we focus on the outcome of that on the multiple voting aspect, which would seem to be one of the only reasons why someone might be providing that false information, so I guess that is where we have come from it previously. It is not specifically mentioned in our legislation.

Senator SMITH: But you do agree that that goes to the heart of the integrity of the final count?

Mr Rogers : Absolutely. I think, as I have said to this committee previously, the idea of one vote, one person, and only a person eligible to vote actually voting, sits at the very heart of our democratic process so I absolutely agree with you.

Senator SMITH: In Western Australia many years ago Mr Viner, who was the member for Stirling, won by a margin of just 12 votes. So it sounds to me like there is a gap, is that right? I am confused about why this is a matter for the Attorney-General's Department when this goes to the issue of integrity of the roll and, of course, the ballot.

Mr Rogers : I think you have picked up on a really interesting area of electoral administration—and not only electoral administration but also policy. I hesitate to comment on what I perceive to be policy issues, but in this particular case I have been on record previously as making some comments about this so allow me to do so. We, along with a number of other jurisdictions in the western world, run a process where people are able to cast a vote without producing identity. This is an issue that, as you know, Senator, has been very actively trawled over not only in Australia but also particularly in jurisdictions like the US where there have been a number of court cases. One of the things people say to me when I meet them socially and talk them on the street is, 'Why don't we show identity when we vote?' The legislation is very clear that we are not allowed to ask for identity when people vote. However, you are correct that this is an issue that is a potential gap in the integrity of the voting process.

Senator Cormann: The issue that you are raising is a legitimate issue for consideration by policymakers. What Mr Rogers is saying is that in the current framework there is nothing else really that he can do at present unless as policymakers we decide to provide a better framework to deal with that sort of risk that you have identified.

Mr Rogers : To go further if I might and now talk about an issue that is not a policy. I have put on record previously that I referred more voters for multiple voting at the end of the last election than the AEC has ever referred to the Australian Federal Police. I have to tell you, as I read into evidence at the last estimates, the net result of that was no prosecutions. We referred the largest number that have ever been referred for multiple voting to the Australian Federal Police. And, based on the same reasons the Australian Federal Police have raised previously, a lack of corroborative evidence makes it very difficult to proceed. I am throwing on the table the fact that I think we have done as much as we can do in terms of detection, referral and working with our partner agencies like the Australian Federal Police and the Commonwealth department of prosecutions. But there is a limit without corroborative evidence. That corroborative evidence could be a whole range of things, but at the moment the act is specific about what I am able to do and it is quite limited. Anything beyond that would be a policy discussion, which would be a matter for this legislature.

Senator SMITH: You described it as a potential gap but isn't it more accurate to describe it as an existing current gap?

Mr Rogers : I want to be very precise with my language. It is a potential gap if someone exploits that gap. I have no evidence that that is being exploited at the moment. I am going as far as I can here in discussing a policy matter without discussing a policy matter.

Senator SMITH: But you do recognise that this goes to the heart of the integrity of the final count. In situations where we might have very narrow outcomes, this is a serious issue.

Mr Pirani, this issue came up in conversation earlier in the week. I am an elector and fill out the bottom of the Senate ballot paper. I number every box. If by chance I put a No. 1 in a box above the line, which takes precedent?

Mr Pirani : The AEC's guideline is that the below-the-line one takes precedent over the above-the-line one.

Mr Rogers : As long as the below-the-line vote is valid.

Senator SMITH: Which comes to my second question. If the below-the-line was invalid then the ballot paper is void?

Mr Pirani : Then the top-of-the-line 1 is a formal vote and that would be regarded as formal.

Senator SMITH: Right. So, if you wanted an insurance policy, let's say you were filling in your 120 names at the bottom and were pretty sure that you had done it but just wanted to be doubly sure, you could put a 1 at the top. Then that would—

Mr Pirani : It would be a formal vote.

Senator SMITH: Wow. This was the reason for my questioning. I did not appreciate that.

CHAIR: I missed that. What would take precedent?

Mr Pirani : If the vote below the line is formal then the below-the-line one would take precedence. If the markings below the line resulted in an informal vote and the marking above the line was formal then the above-the-line vote would be taken as the vote because it is formal. This is consistent with the various High Court decisions in that formalities should not be used to defeat the franchise, so if it is possible to construe a ballot paper as being formal then that is how it will be construed.

Senator SMITH: Finally, I congratulate officials from the Australian Electoral Commission for the great job that they did in supporting the recent elections in what some call Myanmar—I prefer to say Burma. It was very well regarded. Congratulations to you and your officials. It was really an outstanding success.

Mr Rogers : Thank you. I will make sure I pass that on to the individuals.

Senator SMITH: Australians can be very proud of the contribution of the Electoral Commission.

I do have some more, but I will let other senators go.

Senator RICE: I want to talk about the issue of people being removed from the electoral roll because they are of unsound mind.

Mr Rogers : I will call Mr Gately, who is my roll expert and is very well versed in this particular area.

Senator RICE: You might need to put this on notice, but can you tell us how many people have been removed from electoral rolls for reasons of unsound mind since the federal election in 2013?

Mr Gately : We provided advice following the last estimates. There was a question on notice in relation to the number of people who had been removed in the previous four years. If you would like me to go through the four years, if that is helpful, I can do that.

Senator RICE: Yes. I have not got much time, actually, so let's—

Mr Gately : It typically varies between 6,000 and about 16,000, depending on the time during the electoral cycle. To give you an example, for year-to-date in 2015-16 to the end of January, it is just under 2,700 people.

Senator RICE: Okay. Is there any disaggregated data for those removed from the roll for reasons of unsound mind—age, location, gender et cetera?

Mr Gately : I have disaggregated data here down to the state level. I do not have that split at the moment. It is certainly feasible to do.

Senator RICE: Could you take that on notice or table that data?

Mr Gately : Certainly.

Senator RICE: Can the commission define exactly what is meant by 'being of unsound mind'? For what medical reasons were those of unsound mind removed from the rolls?

Mr Gately : The element of the act talks about an elector being unable to understand the significance of enrolling and voting by reason of being of unsound mind. In practice we require a medical certificate from a medical practitioner to make that assertion and support that action. AEC staff do not interpret the concept of unsound mind from an elector perspective.

Senator RICE: So there is no data as to what that means? I understand the form; I have the form in front of me. It basically requires the signature of a medical practitioner—tick the box.

Mr Rogers : Normally—and Mr Gately might correct me—this might occur through an application from a family member who will contact the AEC about a relative. But for us to take action that would mean that that assertion would need to be accompanied by a medical certificate signed by a practitioner. I think once we get that certificate that is as far as the AEC would go.

Senator RICE: So there is no data? I have the certificate here. It is just a declaration from the practitioner to say that the person is of unsound mind.

Mr Rogers : I would doubt it sincerely, but I will check that.

Mr Pirani : Senator, if it might also assist, in the joint standing committee report dated August 2012 entitled Advisory report on the Electoral and Referendum (Improving Electoral Administration) Bill 2012, at paragraphs 2.63 and onwards there is a lengthy discussion about 'unsound mind'. The proposal at that time was to remove it from the act, and the joint standing committee recommended against removing it.

Senator RICE: I am interested in pursuing that conversation.

Mr Rogers : I think we said last time we were here that we have had a lot of feedback from some community groups we work with that they find the term 'unsound mind' to be highly offensive. I know the joint standing committee has looked at that previously, and there were reasons that I cannot quite remember for why that was not picked up as a JSCEM recommendation. But they do find that term to be highly offensive.

Senator RICE: So the AEC's position at that stage was to remove it.

Mr Rogers : We simply reflected the views of the community groups that we work with, rather than advocating for a particular position.

Senator RICE: In particular, what is the reasoning behind the reverse onus of proof process that operates at the moment? People who are claimed to be of unsound mind then have to disprove the accusation rather than it being put to them—

Mr Rogers : It is purely the way the legislation is written.

Mr Pirani : It is also a matter of evidence. For an unsound mind application to be dealt with by the AEC we have a medical certificate in front of us. It then becomes an issue of evidence. We have a medical certificate that has been provided to us by a medical practitioner saying: 'This person is of unsound mind. They do not understand the concept of enrolment and voting.' The issue then becomes one of how we address that as a matter of evidence. We then go back and communicate with the elector, and they will then respond with evidence to the contrary. So it is not strictly a reverse onus of proof; it is just the evidential process as to how this arises. If we do not have a medical certificate then we do not get to square one.

Senator RICE: No, but you do not have any justification to find that medical certificate, which is a pretty basic thing. Is there currently a process for those who do not have a medical condition or disability to prove that they are of sound mind?

Mr Pirani : Sorry?

Mr Rogers : So you are saying that someone has been declared of unsound mind but they wish to prove that they are of sound mind?

Mr Pirani : No.

Senator RICE: I will just finish off because I know we are short of time. Is there any outreach currently done by the AEC to assist those with mental health challenges or intellectual disability to enrol and vote?

Mr Rogers : In the broad, yes. We work with a disability advisory group which has a broad range of community and interest group representation. We meet at least once a year, from memory—I am looking at Mr Carpay. We listen to their concerns and, where we can, we adapt our policies and procedures, including the production of clear English guides and a range of other issues. So, yes, we do. Do we do enough? I would always love to do more.

Senator RICE: Finally, is there any data on the number of people who have intellectual disabilities or mental health problems who are estimated to have never enrolled in the first place?

Mr Rogers : There will not be that data. I can guarantee that.

Senator RICE: Thank you.

Senator WONG: I have some questions in relation to a range of questions on notice I asked in the supplementary round in relation to Foundation 51. They are F49, F50 et cetera—perhaps 10 questions. You might need to assist me with this. The Electoral Act defines what is an associated entity—correct?

Mr Rogers : That is correct.

Senator WONG: Foundation 51—correct if I am wrong—as I understand your answers, has now filed returns as an associated entity. Is that right?

Mr Rogers : Yes. My understanding—and perhaps Mr Pirani might assist me here—is that they have not self-declared as an associated entity but rather they have submitted their disclosure returns as if, to all intents and purposes, they were an associated entity.

Senator WONG: Is that right?

Mr Pirani : That is correct.

Senator WONG: There was a delay, was there not? If you look at question on notice F52, the first financial disclosure return as an associated entity was for 2013-14 financial year—correct?

Mr Rogers : That is correct, if I look at my dates.

Senator WONG: Can you tell me what you understand to be the difference between submitting returns and self-declaring as an associated entity? Can you explain that to me?

Mr Rogers : Yes. Foundation 51 undertook a process of self-determination. They decided that, for the avoidance of doubt, as I understand it, they would fulfil disclosure returns as if they were an associated entity. From my perspective, given the entire purpose of the funding and disclosure section of the Electoral Act is to achieve disclosure, to all intents and purposes, disclosure has been achieved.

Senator WONG: When did they make that decision and what involvement, engagement or discussion with the AEC was there in the course of making that decision?

Mr Rogers : As I think you just said, the first date that they submitted that disclosure return. I am just checking my notes; if you could just give me a moment. They lodged the 2013-14 disclosure return on 16 October 2014.

Senator WONG: So that was two years, was it? So quite late in terms of what they were actually disclosing.

Mr Pirani : For the 2013-14 financial year that is within time.

Senator WONG: Yes, but the—

Mr Pirani : Remember, they only lodged it after the end of the financial year. I think you are referring to the 2011-12 return, which they lodged on 4 June 2015.

Mr Rogers : That is correct. They lodged their 2014-15 return on 3 September 2015 and the 2012-13 return on 28 November 2014.

Senator WONG: Let us just go through this. I asked you what your involvement or engagement was in the decision, and you have not answered that.

Mr Rogers : I am sorry. There was some public information about a complaint that was lodged with both the Australian Electoral Commission and the Northern Territory Electoral Commission about the activities of Foundation 51. The Northern Territory Electoral Commission pursued a line of inquiry, and the Australian Electoral Commission also pursued a line of inquiry. Staff from the AEC met with Mr Lewis and with the Northern Territory Electoral Commissioner in June 2015.

Senator WONG: So in fact this is what occurred in terms of the time line: the disclosure only occurred as a result of public reporting about the entity and the ALP in the NT writing to you in both December 2014 and May 2015. Is that correct?

Mr Rogers : You are asking a question that I do not know the answer to. What you are asking me is to talk about the motivation of Foundation 51.

Senator WONG: I am asking about the time frames.

Mr Rogers : Senator, I am not being cute, but you—

Senator WONG: Well, you are a little, but that is fine. I am saying that disclosure only occurred after this matter became public.

Mr Rogers : I am happy to answer that. That is a factual question. Yes, disclosure occurred after it was made public.

Senator WONG: I still do not understand when you say 'lodged as if they were an associated entity' what you mean. At law, do you consider them to be an associated entity or not?

Mr Rogers : I have formed no view about that.

Senator WONG: When do you form a view? You have had complaints about this entity. After the break, I would be happy to go through some of the donations that have been made to now Senator McGrath and others. You have had complaints and public reports and they are now filing. At what point do you consider you need to make a determination and form a view as to whether they are an associated entity?

Mr Rogers : I do not intend to.

Senator WONG: You do not intend to?

Mr Rogers : I do not intend to form a view about—

Senator WONG: You do not intend to form a view as to whether an organisation is an associated entity, notwithstanding the issues that have been raised publicly about them?

Mr Rogers : As I think I described before, we consider the main purpose of the act to be disclosure.

Senator WONG: Hang on.

Mr Rogers : Senator, you have asked me a question. Please—

Senator WONG: And I am going to follow up, because the act also means—

CHAIR: Senator Wong, Mr Rogers is entitled to answer the question.

Senator WONG: Mr Rogers is not doing his job, frankly.

Senator Cormann interjecting

CHAIR: Order! It is easy; I will shut this down. Mr Rogers, you are entitled to respond without being interrupted. If you have concluded your answer we will go back to more questions. Have you concluded your answer?

Mr Rogers : No, I have not.

CHAIR: Please continue.

Mr Rogers : Senator, I am very clear about my responsibility and I reject totally and fundamentally your assertion that I am not doing my job—and I am offended by that. The law does not require me to form an opinion about whether every entity in Australia is an associated entity. I was saying that the purpose of the act is disclosure. In this case, disclosure has been achieved. So, from my perspective, that is the end of that matter. If Foundation 51 ceased putting returns in, I may then go back on what I have just said to you and take a different course of action. But at this stage I am satisfied with my approach.

Senator WONG: Okay, first a straw man: I have not suggested to you nor has anyone suggested that you have to form a view about every entity in Australia. So that is a nonsensical proposition. Second, it makes a nonsense of any act if you are not prepared to establish if the law applies. What you are saying to me is, 'I don't want to form an opinion as to whether the law applies because they are doing it anyway.' I was not aware that self-regulation in terms of whether the law applies was actually contemplated by the legislation. This is no run-of-the-mill entity; there have been substantial complaints raised about the operation of this entity. It did not self-disclose until these issues were made public.

Mr Rogers : The funding and disclosure legislation has been written in a way to enable parties and entities to make amendments to returns for a whole range of valid reasons. That is absolutely clear in the legislation. It has been deliberately written that way, and there are a whole range of reasons that an entity or even a party may put in a later return. In fact, if you look at our latest round of disclosures that we put up on the web last week you will see that there is are a whole range of amended returns from all parts of the political spectrum. We do take this seriously and, when I do need to form a view, we form a view.

We are in the process of referring a large number of individuals and entities to the DPP for prosecution about not putting returns in when they are required to put returns in. In this particular case, I have not formed a view about whether it is an associated entity because, to all intents and purposes, they have fulfilled a disclosure requirement.

Senator WONG: Well, let's go to that. You are aware that the secretary of the Northern Territory Labor Party wrote to you complaining about potential noncompliance with the Electoral Act in relation to Foundation 51 in December 2014 and May 2015. Do you recall that correspondence?

Mr Rogers : I will take your word for the dates, but, yes, I remember the correspondence.

Senator WONG: You responded to Mr Rowe—I think in August 2015—stating that 'Mr Lewis, director of Foundation 51, had furnished annual financial disclosure returns for Foundation 51 as an associated entity for the 2011-12, 2012-13 and 2013-14 financial years.' Correct?

Mr Rogers : That is probably correct, Senator.

Senator WONG: So, in reference to our opening discussion where you said to me that they had complied, can you just remind us about the deadlines that exist under the Electoral Act for disclosure by associated entities?

Mr Rogers : Mr Pirani, do you have the dates?

Mr Pirani : The dates for disclosure by associated entities are, I think, 20 weeks after the end of the financial year.

Senator WONG: I thought it was 16, but—

Mr Pirani : It is 16 weeks. You are correct, Senator. It is section 314AEA (1) of the Electoral Act.

Senator WONG: If they are—and you do not wish to form an opinion about that—they would have breached the Electoral Act, would they not have, in relation to 2011-12 and 2012-13 financial years?

Mr Rogers : Sorry, Senator: if I had formed a view that they were an associated entity—

Senator WONG: No. I am not asking about your view; I am asking about the law. If they are in fact as a matter of law—which is not your opinion, but it is a matter of law—an associated entity they would be in breach of the 16-week requirement in that provision which has many letters associated with it in relation to the 2011-12 and 2012-13 financial years, would they not?

Mr Rogers : You are asking me to speculate about something.

Senator WONG: Oh, seriously!

CHAIR: At that point, it being 12:30—and there is a hard marker—I am going to presume that the Australian Electoral Commission is required under lunch.

Senator WONG: Thank you.

CHAIR: So we will resume with the AEC at 1.30 pm.

Proceedings suspended from 12:30 to 13:30

CHAIR: Before we resume with the Australian Electoral Commission, for the benefit of other witnesses I want to make an announcement about what is happening. We have received the requested Hansard proof from this morning. I want to thank Hansard for facilitating that to proof level in a quick turnaround time—it is a lot of pressure for them. We are going to conclude, as soon as possible, with the AEC and then we are going to go back to the ASC to hopefully conclude that in a timely manner before we move onto the Commonwealth Superannuation Corporation. Before we get to any of that, Minister, do you have a statement you wish to make?

Senator Cormann: Just before we get to ASC.

CHAIR: Okay. We are going to the AEC, in continuation. Senator Wong, I think you were in the midst of questions.

Senator WONG: I will try to truncate these because we are a bit behind and we have to get on to other portfolio agencies. Mr Rogers, you would accept that if an entity is an associated entity it has particular obligations under the act—correct?

Mr Rogers : That is correct.

Senator WONG: In fact, the act does set out some penalties in relation to the failure to comply with 314AEA—is that right?

Mr Rogers : That is correct.

Senator WONG: It is highly alphabetical, this act. And the offences provision, which is applicable—is that 315?

Mr Pirani : That is correct.

Senator WONG: It provides that, amongst other things, if a person—I will interpolate here 'an entity'—fails to furnish a return that the person is required to furnish under the three divisions, which includes the section we have been discussing, then it sets out the offence that would be created, and it is a strict liability offence—correct?

Mr Rogers : That is correct.

Senator WONG: I make this point: you cannot determine whether or not there is a prima facie evidence of an offence unless you come to a view about whether or not they are an associated entity.

Mr Rogers : As I said—

Senator WONG: You agree with the proposition I just put to you? You cannot determine if there is a prima facie breach, not unless you also come to a view as to whether they are an associated entity.

Mr Rogers : I am happy to endorse that and say yes.

Senator WONG: My point is: if you do not come to a view, essentially it does make a nonsense of the act because you cannot determine a breach if you are not prepared to determine if the law in fact applies.

Mr Rogers : I take your point. What I was trying say before lunch is that I am also conscious, in our dealings with all associated entities, parties and donors, that the prime purpose of the act is disclosure.

Senator WONG: I understand your point on that, but I am making a different point: you may make—and you might need to justify it either in the public arena or if we ask you questions here—a decision that you will not take a matter further. And there may be reasons for that: there might be extenuating circumstances; it might be that it would not achieve anything or whatever. But you are not putting that to this committee. What you are putting is: 'I don't have to decide'—and I will add 'if the law even applies'. I think that is, with respect, an abrogation of your responsibilities.

Mr Rogers : My position is that I have not had to decide because Foundation 51, of their own volition, have made the decision to submit annual disclosure returns as if they are an associated entity. What I have relied on, just so I can explain my position, is the prime purpose of the act being disclosure. This is a policy that I have adopted not only in this case but, just to prove the consistency, with all parties, donors and associated entities. Generally speaking, when disclosure has been achieved the prime purpose of the act has been met.

Senator WONG: Except that the failure to determine in your own mind—or in terms of your position—whether they are in fact an entity means that you do not have to come to a view about whether they should be subjected to any penalty for the demonstrably late returns that we discussed prior to lunch. Correct?

Mr Rogers : That is correct. But as I said to you, my overarching principle with this is that disclosure has been achieved and that is the prime purpose of the act.

Senator WONG: But, with respect, parliament has determined penalties and parliament has set out circumstances in which penalties can be applied. Your failure to turn your mind to or to make a decision about—or your refusal or your decision, however you want to describe your state of mind—whether they are an associated entity or not means you are in effect saying, 'I do not even have to consider—I will not consider—whether or not the penalty provisions apply.'

Mr Rogers : You said at the start, when you were reading out the section of the act—and Mr Pirani has the act before you—that it is a strict liability offence, which is absolutely true. But a strict liability offence has a number of defences to it as well. 'Strict liability' also means that there are defences to that. I am looking in front of me at the list of amendments from all of the parties—from the three major parties—from the period 14 to 15. Every single party has submitted amended returns—

Senator WONG: Mr Rogers—

Mr Rogers : I have adopted the approach that when disclosure is achieved the purpose of the act has been met. When the act was introduced that was even discussed, I think, in the second reading speech—Mr Pirani?

Mr Pirani : It was discussed in the Joint Select Committee on Electoral Matters.

Senator WONG: The JSCEM—I am aware of that. But, Mr Rogers, that is not what you told me before. You did not say, 'I have come to this view because there were extenuating circumstances or whatever, in the fact that they delayed and failed to comply with the act.' I would remind you that that was only after these issues were made public. So if we want to talk about notions of equity and coming to it with clean hands, the disclosures only occurred after these matters were made public. If you come to the view, 'They are an entity but I am not going to do anything because they have dealt with it,' that is a different proposition. That is not what you put to me. What you put to the committee is that you do not have to determine that. I am saying to you that I do not see how you can apply the law if you do not come to a judgement in the context of the evidence that has been provided to you. Did you want to respond, because I was going to move onto another point?

Mr Rogers : Sure. I take your point fully, and I come back to you by saying that I have made the decision. You are quite right: I have to be accountable for that decision I make, as I have made in a number of similar situations involving a number of other parties and donors as that disclosure has been achieved. I have already said to you that I will not speculate, and I do not want to break my own rule here, but in this particular case were disclosure returns not submitted, or if the foundation stopped returning disclosure returns, that might crystallise an issue that I might then look at.

Senator WONG: I want to go through some of the evidence. I was going to table this if it had not been tabled already, but I am not sure I have a clean copy of an email from the director of Foundation 51 to the then CLP president. You were sent that as an—

Mr Rogers : Attachment.

Senator WONG: Let's start from the beginning. You were written to in May 2014, December 2014 and May 2015. You wrote over a year after the first correspondence—and it did take some time—in August 2015 back to Mr Rowe. In one of those letters is attached an email from the director of Foundation 51 to, I think, the then CLP president. Do you recall that?

Mr Rogers : I do not have that in front of me, but I think I do recall it.

Senator WONG: I might ask my staff to bring up a clean copy; I think I have marked this. Amongst other things, that email discloses payments to the now Senator James McGrath. Do you recall that?

Mr Rogers : I clearly do not have it in front of me. I recall the overall letter. I do not recall the specifics. But for the sake of it, because I want to be helpful, let us say yes.

Senator WONG: Sure. I will ask my staff to get a clean copy. In the month to 31 August another $200,000 was received and spent on:

… polling $110,000, consultants re the debt strategies and policies $34,000, concept development $34,160, plus travel, McGrath outgoings etc.

Like you, I will be mortified if this information becomes widely known. It must be closely held for obvious reasons.

As a result of receiving this letter—which I think was the December 2014 letter—can you confirm that you made no inquiries of the now Senator McGrath as to whether he received funding from Foundation 51?

Mr Rogers : No, I cannot confirm that at the moment, but I am happy to take that on notice. But, to be helpful, it would not surprise me if we had not asked that question. But I will take that on notice.

Senator WONG: I am now going to table, subject to the committee's agreement, this email. Can I keep asking questions while you consider that, chair?

CHAIR: Yes, keep asking questions.

Senator WONG: Thank you. In F55 I asked of the AEC:

Did the Australian Electoral Commissioner contact Mr McGrath to ascertain whether Foundation 51 made payments to him directly, via the Country Liberal Party, or via another source, in the course of determining whether the entity should lodge an annual disclosure return as an associated entity of the Country Liberal Party.

Your answer is no, the Australian Electoral Commissioner did not contact Mr McGrath.

Mr Rogers : Yes. As I said, that would not surprise me. That was the answer we gave. Also to be fair, there are other parts of that answer as well.

Senator WONG: Sure. Do you want me to read all of it? It is on the public record. I was just drawing it to your attention. Would it be fair to say that essentially the nub of it was, 'They have already disclosed, so we did not have to talk to them'? What I am saying to you is that assertions had been made, allegations had been made, about this entity. This email asserts that payments were made to the campaign director of the CLP. This is not Senator McGrath in his senior Liberals person capacity. He was the campaign manager, director or whatever the title was. Surely it would have been an appropriate exercise of your obligations for someone to contact him to check that.

Mr Rogers : As I have said, we made a determination that, once disclosure had been achieved, the purpose of the act had been met. I am happy to go further with this and also talk about some of the other questions that you have asked, because it is relevant to this issue and we can discuss it. One of your questions was about—

Senator WONG: Which questions?

Mr Rogers : whether I provided advice to the Northern Territory Electoral Commission.

Senator WONG: Are you talking about my questions on notice?

Mr Rogers : Yes.

Senator WONG: You had an opportunity to answer them.

Mr Rogers : And I have answered them. The point I wanted to make is, even with the Northern Territory Electoral Commission going down a different path, the Northern Territory Director of Public Prosecutions said that there is no evidence—

Senator WONG: That is not right.

Mr Rogers : That it was not in the public interest.

Senator WONG: Yes. You just changed. It is not correct to say that he or she said that there was no evidence. That is not what the answer says.

Mr Rogers : That it was not in the public interest to proceed with the prosecution.

Senator WONG: That is a different proposition. The NTEC advised that an investigation had established possible breaches of electoral law. The breaches were referred to the Northern Territory Police for further consideration. There was subsequently a decision made that it was not in the public interest to proceed. Is that an accurate reflection?

Mr Rogers : That is correct. In fact the NT Director of Public Prosecutions said that as they complied with all of the requests made of them by the NTEC, he was determined that it was not in the public interest to pursue the matter to prosecution.

Senator WONG: Yes. Can we read the preceding phrase? 'Not withstanding a prima facie case and a reasonable prospect of conviction.' That is from your own F59.

Mr Rogers : I am just reading from the letter that the DPP—

Senator WONG: 'Prima facie case and a reasonable prospect of conviction'. Okay. We are going to have to not agree on that. Can I also draw a report to your attention—I do not have a copy of this email, but it is reproduced by the ABC in the media on 10 October 2014. The report says that Mr Earley, who is described as the 'newly minted CLP president', asked questions of the director of Foundation 51, Graeme Lewis, about its relationship with Mr Mills, who was then the CLP Chief Minister, Mr Lewis responded:

I am the sole director and shareholder, with Terry Mills for obvious reasons, not appearing on the registers, but adopting a directorial role throughout.

There you have it. Out of the mouth of the man who is the director we are told that the former CLP Chief Minister was 'adopting a directorial role throughout'. Do you not regard that as evidence that you ought to consider in determining whether or not this is an associated entity?

Mr Rogers : I think we are going to have to agree to disagree. I have not crystallised a view because, to all intents and purposes, Foundation 51 is producing disclosure returns as if they were an associated entity. The purpose of the act is disclosure and that purpose is primarily being met. If there is new information I do not have, I am more than happy to consider it.

Senator WONG: With respect, I think you have plenty of evidence. You are just choosing to make a discretionary decision not to act on it. We are going to have to disagree because I regard that, and others regard that, as an unsatisfactory decision for someone in your position. I would like to go on to the payment from the school. I will try to summarise the story. As I understand it, there is a school in Darwin, Kormilda College. It discovers that it is on the disclosure returns for Foundation 51. What is then made public by the school's chairman—this is in February—is that this was news to him, but that the board had commissioned some research from Crosby Textor. He then finds out, after having no involvement, that the school appears on an Electoral Commission return from Foundation 51. This is extraordinary. A school pays money to Crosby Textor for research for their purposes—I do not know what that was—and then discovers that that payment appears in the associated entity disclosure return for Foundation 51. Have you made any inquiries about that?

Mr Rogers : As we said in the answer to you, we have not contacted Kormilda College, but we have conducted a review of the return. Based on the records examined, Foundation 51 accurately disclosed the information.

Senator WONG: Does it not concern you that you have a school with no knowledge of Foundation 51 paying a research company something—and this money ends up in the accounts of Foundation 51?

Mr Rogers : I will return to my earlier evidence. I know you are dissatisfied with this, but disclosure is being achieved. I have taken the view with this and other cases involving all major political parties that, if disclosure is being achieved, the purpose of the act is being substantially met.

Senator WONG: That is not actually my question. With respect, it is a non-responsive answer.

Mr Pirani : That is not an unusual event. We have numerous cases where political parties record a person as a donor and we do not have a donor return because the donor did not believe they were sending money that ended up in a political party.

Senator WONG: It is a school!

Mr Pirani : Again, whether it is a school, whether it is an individual, whether it is a company—it is a common occurrence because of the legislation. There are numerous cases.

Senator WONG: Come one—there is something wrong, isn't there, where if a school pays money for a commercial arrangement it ends up being a political donation without their knowledge? Are you really telling me that that is just fine and everyone should just look away?

Mr Pirani : That is not an unusual occurrence.

Senator WONG: That schools end up making donations?

CHAIR: No, the principle attached to it.

Senator WONG: Sure. I understand the argument. Finally, I put this point to you: Foundation 51 itself signs a document that is an entitled associated entity disclosure return. They are, in effect, self-declaring as an associated entity.

CHAIR: Senator Wong, where did you get this from?

Senator WONG: That is attached to correspondence sent to the commissioner.

CHAIR: Was it obtained in the public domain?

Mr Rogers : I think it was released publicly. I might be wrong, but I think it was released publicly by—

Senator WONG: The writer?

Mr Rogers : Yes, I think so.

Senator WONG: I just thought it would be tabled.

CHAIR: I want to take some advice about whether it was released by the writer before we accept it as tabled.

Senator WONG: By the person who wrote the letter to which it was attached. I think it is germane to my questions.

CHAIR: That is fine but, rather than accept it as tabled now, we want to get some advice. I am not trying to stonewall you. I just want to get some advice.

Senator WONG: Thank you.

CHAIR: Any other questions of the AEC? Senator Leyonhjelm.

Senator LEYONHJELM: Saved by the bell! Mr Rogers, I apologise if this has been asked of you at previous estimates; I understand it has not been asked of you today. There is constant discussion of proposals to remove group voting tickets for Senate voting. If that were to be adopted, what period of time would the Electoral Commission require to effectively count the votes?

Mr Rogers : You are right. That question has not been asked today, but it has been asked numerous times previously. I have been on record as saying that I have not provided that specific advice deliberately, because I do not know what the shape of any proposed legislation may or may not be. I have been caught out previously by providing indicative figures at this committee and then, like a tradesman, being held to that forever without ever being able to go back and change it. From my perspective, when I see some proposed legislation I will provide that advice. In the meantime—and, again, I am genuinely trying to be helpful—the more time I get, the happier I would be to do it. And the more money I get from the Department of Finance—the normally-parsimonious Department of Finance—the happier I will be. But I do not want the AEC to be used as either a reason to do or not to do anything. Until I actually see the formal proposal it is very difficult for me to provide that advice. But clearly, change requires time.

Ms Halton : And I can assure you that the Electoral Commission has been told that there is no blank cheque.

Senator LEYONHJELM: I am really pleased about that, too.

Mr Rogers : I am not so pleased about the no blank cheque.

Senator LEYONHJELM: A follow-up to that is: have you done any contingency planning for the possibility that that might be something you have to deal with?

Mr Rogers : You will not be surprised when I tell you that we do contingency and risk management about a whole range of issues; it would be foolish for us not to. But, again, it is difficult to do detailed contingency planning unless we have the detail of what that might mean. What we have been doing some work on internally is getting a better understanding of the current system. That sounds a little odd, but the Senate voting system is complex and, for my own benefit, I want to make sure that we have got an understanding of our current system. So we have been doing some work to make sure that we understand everything about the current system. The last time we were asked to do a manual count of the Senate was, I think, before 1983, and my concern is that it would be a bit like NASA forgetting how to go to the moon, so we have been doing some work in that space. In terms of preparation or setting in train mechanisms to adopt some legislation, until I see what it is then that is very hard. But of course we do normal risk management all the time. And 'what ifs'.

Senator LEYONHJELM: Actually, I understand the system pretty well so, if you need any help there, just let me know.

Mr Rogers : You could be the person to speak to, Senator.

CHAIR: Before we go on—Senator Wong, that is in the public domain. I found it on a Google search.

Senator WONG: There you go!

CHAIR: So, generally, it is not necessary to table them, but of course you are welcome to table it if you want to.

Senator WONG: To be honest, I thought it would provide context to the question—

CHAIR: Let's agree that it is accepted.

Senator WONG: Okay.

CHAIR: All right? So we will do that.

Senator WONG: Thank you.

Senator XENOPHON: I have a general question, because I know the chair has already warned me that he will rule me out of order if I try to be bold. If there is to be a change in the Senate voting system, what time frame and time lag do you need, including in terms of any technical changes—

CHAIR: I did say to Senator Xenophon that this was a bit like Groundhog Day, Mr Rogers.

Senator LEYONHJELM: I have just asked that question.

Senator XENOPHON: Did you just ask that question?

Mr Rogers : I have just responded to it.

Senator XENOPHON: I did not know that. I was too busy talking to the chair.

Mr Rogers : I am not deliberately trying to be obscure but I am avoiding providing an actual figure because I do not know what the legislation might be.

Senator XENOPHON: If it were to say 'above the line and below the line but no group voting tickets', does that—

CHAIR: Senator Xenophon, I warned you about hypotheticals.

Mr Rogers : It does give me the chance to get stuck into the secretary for Finance and ask for extra cash, which I am happy to do, but—

Senator XENOPHON: See? I am just trying to help them.

Ms Halton : Thank you, Senator.

CHAIR: To be fair to Mr Rogers, someone on the committee asks this question every single estimates, and the response is entirely consistent. Until you see the legislation—

Ms Halton : Yes, you do not know.

Senator XENOPHON: If we go back in time to 1983-84, which I am sure you know because you would still have been at primary school or whatever—

Mr Rogers : Thank you for the compliment; but, no, not quite.

Senator XENOPHON: that was the last significant change. There was no 'above the line' and you had to mark every box by the system of one above the line or all the numbers below the line. You can take this on notice: what corporate recollection of the AEC is there of the time it took to explain the amount of work done to publicise those changes to the system? That is not a hypothetical, Chair. It is going back to the future.

CHAIR: Yes, it is—

Mr Rogers : I can tell you, quite confidently, I was not in the AEC during that particular period.

Senator XENOPHON: I do not think you were born, were you?

Mr Rogers : Ha! I will take that on notice and we will find out as much information as we can.

Senator XENOPHON: In other words, I want to know about the sort of work that was done the last time there was a change—because we do not know whether there will be a change or not.

Mr Pirani : I can perhaps add to that: the provision to allow us to do a computerised Senate count was only introduced in 1998. There would not have been system changes because we were not able to use the system prior to that.

Senator XENOPHON: Right. So they were done manually. It would have employed thousands and thousands of Australians to do that counting. Think of the job creation, Senator Cormann!

Mr Rogers : All joking aside—as my heart rate goes up—it is something that I do not wish to do this time around.

Senator XENOPHON: You are not going back to a manual count?

Senator WONG: Sorry—what did you say that you do not wish to do?

Senator LEYONHJELM: They would never give you the money anyway.

Senator XENOPHON: A manual count.

Mr Rogers : A manual count of the Senate, Senator.

Senator WONG: Fair enough.

Senator LEYONHJELM: You would never get the money to employ them.

Mr Rogers : It is not so much the manual count; it is the manual distribution of preferences that we are trying avoid.

Senator WONG: Yes, that would be a lot of fun.

CHAIR: Mr Rogers, I am hoping this will conclude things. I recall that notices have recently been sent out about the closure of polling booths.

Mr Rogers : That is correct, Chair.

CHAIR: Have they been finalised or is that at consultation?

Mr Rogers : It has been largely finalised. There might be some movement as we get closer to the actual date of the election, for very obvious reasons, about booths not being available. But, by and large, yes, we have concluded that process. We have also written to local members to inform them which polling booths will be closed and we asked for feedback. I think previously I said we got all sorts of different feedback from agreement through to disagreement through to no feedback and occasionally some feedback by press release. That is okay as well because at least we know what people think, and we have implemented that process.

CHAIR: How many have you closed at this moment?

Mr Rogers : We propose to close 730 polling places.

CHAIR: The justification or the basis, if I am correct, is the increased number of pre-poll votes.

Mr Rogers : Actually, in some ways you are correct because the original ANAO recommendation was about our poor use of data, which I agree with. We had not analysed the impact of the increase in pre-poll votes on the number of ordinary polling booths on the day. But it is not necessarily a linear relationship. There are other factors as well. Simply, some of the polling booths were taking incredibly few votes. In other cases they were no longer suitable to be a polling place either because of occupational health and safety reasons or, given what occurred in 2013, security reasons for the ballot papers. There was a number of factors that went towards the closure of those polling booths.

CHAIR: Thank you for that. Are there any other questions for the AEC? There being none, thank you very much for your attendance. We will go back to ASC Pty Ltd, and I invite the two officers back to the table to join the minister. Minister, when we are clear at the desk I will go to you.