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Federal election: allegations of possible breach of Commonwealth Electoral Act by Labor Party candidate, Frank Walker, over how-to-vote card.

ANDREW OLLE: It seems that a major row is brewing over the fight by the Labor Party to hold the seat of Robertson, which was held for the ALP by the former Environment Minister, Barry Cohen. Mr Cohen, of course, retired for the last election and his seat was eventually won by Frank Walker, a former State Minister for the Labor Party, after a fairly bitter pre-selection. But the pre-selection was nothing to the actual election itself. All the other candidates, or at least four of the other candidates in that election, have ganged up on Mr Walker, in outrage over the how-to-vote card that was distributed. The how-to-vote card was apparently styled as a 'how to vote for the environment' card, and would you believe it, it didn't suggest that you vote for the Labor Party first. Oh no, no. First, you vote for the Democrats, and then you vote for Brian Ellis, who was the local Greens candidate, and then you vote for Frank Walker, the Labor Party.

Now the Liberal, the Independent, and the Democrat and the Green from that contest, have all got together, sent off angry missives to the Electoral Commission to see if it might actually be in breach of laws there, and I'm sure questions are going to be asked within the Labor Party itself, and I thought who better to speak to on that issue this morning than the former member, Mr Barry Cohen, who joins us on the line now. Thanks for your time, Mr Cohen. What did you think of this how-to-vote card?

BARRY COHEN: I was appalled; I was ashamed and I was embarrassed by it.

ANDREW OLLE: Obviously you had nothing to do with it. Is it as naked as I've heard, that it literally says, 'How to vote for the environment' and puts Labor third?

BARRY COHEN: Yes, that's precisely what it says. Incidentally, I don't think too many of the local Labor people knew about it, because it appears it was printed in Canberra and the people that actually distributed it, as far as I can determine, were not local Labor Party branch members. Those that did do it were strangers to the area and appeared right on that last .. at the polling booth, informing the Labor Party people that they were 'to help them'. It is a very deceitful ... and as far as I can see, a clear breach of the Electoral Act, because the Electoral Act states, 'Thou shalt not issue a how-to-vote card, placing somebody at the top of the list, giving them your first preference vote, unless you have that person's written authority'. Glenys Griffiths, who is the Democrat candidate, had stated quite clearly that she did not give the written authority, therefore, as far as I can see, it's a very clear breach of the Act. Also, the other section of the Act which deals with misleading information, and it purported to be the environment card. Now I gather in a lot of areas the ACF handed out how-to-vote cards, indicating how people should vote. They had nothing to do with this and I gather .. what you didn't mention, I don't think, was that there's a photograph of Peter Garrett on it.

ANDREW OLLE: You're joking.

BARRY COHEN: Oh yes, and a quote from the Australian Conservation Foundation, and it's done on recycled paper, which was slightly at odds with the glossy publications we saw throughout the rest of the campaign.

ANDREW OLLE: Tell me it was green now.

BARRY COHEN: Well, that's a recycled look, you know what it's like. I think it was a sort of pale green, yes. The other thing, of course, is, apart from the breach of the law, and it's clearly a set-up to mislead people, that it's an ACF or Green recommendation, when it's not, because down on the bottom in very fine print it's got, 'Authorised by A. Reith, Australian Labor Party'. The other thing, of course, is under Labor Party rules, anybody who hands out how-to-vote cards which indicates a first preference vote for anyone other than the ALP is subject to severe discipline, expulsion ... Of course, imagine what would've happened if I'd been there handing out how-to-vote cards for some other candidate; there would've been an outrage.

ANDREW OLLE: Absolutely.

BARRY COHEN: An absolute outrage.

ANDREW OLLE: Yes, it really is extraordinary. But you said the local Labor Party people had nothing to do with this, but there's no doubt that it did come from the Labor Party, is there?

BARRY COHEN: Some of them did, but from what I can gather, most of them were not aware of what was going on. Yes, obviously some of the local Labor Party people were aware of it.

ANDREW OLLE: Did this only become apparent on the day, on polling day?

BARRY COHEN: Yes. None of the people that I knew in the Labor Party were aware of what was going to happen until the day itself. In fact, I didn't hear about it until a couple of days after the poll. But it was widely distributed at major polling booths right throughout the whole electorate by people who, I gather, were pretty much strangers to the area.

ANDREW OLLE: Well, you've indicated that you think it could be a breach of party rules but, more importantly, that it could also be a breach of the Electoral Act.

BARRY COHEN: You see, there a number of things there to be considered. First of all, the reason why that was introduced into the Act, one of the reasons, is that, say for instance, Andrew Olle was a candidate in a seat for the Liberal Party, we'll say, and suddenly on the day, a group of people appear from the Australian Nazi Party handing out how-to-vote cards, urging people to vote for Andrew Olle, the sort of support I think you could without.

ANDREW OLLE: Indeed. I must say, I'm not likely to get .. just as an aside.

BARRY COHEN: But, you take the point, and that's why it was introduced, so that people couldn't embarrass candidates by supporting them, without their written authority. The other thing that was, of course, quite stupid about it is that in this particular election there was a huge vote across Australia for the Democrats and the Green candidates and Independents. We've seen Ted Mack get elected; we saw Helen Caldicott nearly make it; we saw Stewart West almost defeated by the Democrat candidate in Cunningham, and of course Janine Haines was not that far away in Kingston. So what would have happened if they'd been more successful with the ticket?

ANDREW OLLE: They could have got a Democrat up.

BARRY COHEN: The point is, that Glenys Griffiths, as it was, got 14,000 votes. That was before preferences were distributed.

ANDREW OLLE: Because there was talk, wasn't there, that Walker was in a lot of trouble in Robertson and, in fact, there was a danger that the Labor Party would lose the seat. I suppose that was really going close to the edge, then?

BARRY COHEN: Exactly. I mean, had it been a bit more successful we would've have had a Democrat member here. Whichever way you look at it - I mean, the most important thing, there's a clear breach of the Electoral Act, as far as I can see. But the other thing, from the Labor Party's point of view, it could well have resulted in the election.

ANDREW OLLE: Yes, risky tactics too. But might it also still produce that result of endangering the election result by getting it overthrown. I mean, if it's a breach of the Act...

BARRY COHEN: You see, one of the things .. I don't know; I mean, I'm not a lawyer, I'm not a judge. I don't know the Act back to front. But the problem that you've got here is if some action isn't taken on a thing like this, that in future, anybody can bring out these tickets at election time, claiming to be .. issue tickets that claim that all sorts of people support them, and just face a fine of $1,000 or something like that. And they'll say, 'That's nothing. We'll just budget that into our campaign expenses'.

ANDREW OLLE: Exactly. It's got to have teeth if it's going to mean anything.

BARRY COHEN: That's right. I gather .. I don't gather, I know, the Conservation Foundation people rang me a number of times, are absolutely outraged by it, and I gather Peter Garrett is very, very angry about it; because it means that in future any Labor candidate, or Liberal candidate for that matter, can just print a few bodgie cards, issue them, and claim to having the support of the Conservation movement, who obviously now have a very considerable clout politically, and there's nothing they could do about it.

ANDREW OLLE: I've got to say, in fairness, Barry Cohen, of course it is known that you didn't have a lot of time for Frank Walker as the candidate there. That doesn't cover this?



BARRY COHEN: I said maybe people would now understand why.

ANDREW OLLE: I was going to say that. That isn't what's behind your attack now?

BARRY COHEN: My attack is that people have rung me and asked me what I thought of it, and I'm telling them what I thought of it. The other thing is that I've represented this area for 20 years and I can say, look anyone in the eye and say, 'We've never ever adopted any sort of tactics'. I think we've got a reputation up here for decency and honesty. I've got an interest in the seat that I represented for 20 years and I would hope that .. and not only for me, but for Michael Lee, the other member for this area, who represents the old half of the old Robertson, all the State members. This sort of thing has never happened in the Labor Party in this area in the whole 20 years that I've been involved, the quarter of a century I've been involved up here.

ANDREW OLLE: So it's a sour taste in the mouth.

BARRY COHEN: Politically, and people have said why am I complaining. Should I only complain when the Liberals break the law?

ANDREW OLLE: No, indeed not. I think you should be encouraged to have some integrity. But it leaves a sour taste in the mouth, is what you're saying.

BARRY COHEN: Absolutely.

ANDREW OLLE: Okay. I do appreciate your time this morning. Thank you very much for talking to us. Barry Cohen, the former member for Robertson there, speaking out very strongly and firmly about tactics used by the Labor Party to retain the seat under the new candidate, of course, Frank Walker, who, as I said, Barry Cohen did certainly firmly oppose in the pre-selection battle leading up to it. He just thinks what has subsequently transpired on polling day has backed up his judgment in that, that this is very much a dirty tactic.

The tactic we're talking about, just in case you tuned in late, was to issue a how-to-vote for the environment card. This was handed out by the Labor Party people on election day. It suggested you vote first for the Democrats, second for the local Greens, and only third for the Labor Party, and this is the Labor Party handing this out. It also apparently had a photo on the how-to-vote card of Peter Garrett, together with a quote from him, and as Mr Cohen just told us, a quote from the Australian Conservation Foundation, which sounds like an endorsement. Very strange tactics indeed. And, as I said, people have been in touch, apparently, with the Australian Electoral Office over this, so I thought we should get in touch with them ourselves and see what they can do about it. On the line we have Brian Nugent from that office. Good morning, Mr Nugent.

BRIAN NUGENT: Hello Andrew, how are you?

ANDREW OLLE: Well, thank you, and I appreciate your time as well. I take it you have had some complaints about this, have you?

BRIAN NUGENT: I've had one telephone complaint, Andrew, and that particular person was asked to put the complaint in writing and provide the evidence. But as yet, I've not seen the card and nor have I received any communication about it.

ANDREW OLLE: What is the Act on this? Can you tell us what the particular provision is?

BRIAN NUGENT: Briefly, it's section 351 of the Commonwealth Electoral Act. If you're advocating in the House of Representatives a number one vote for a candidate, other than your party's candidate, then in fact you must have the written approval, or written authority of that candidate.

ANDREW OLLE: And if you haven't?

BRIAN NUGENT: There is a penalty. The penalty for a person is $1,000; if it's a body corporate it's $5,000.

ANDREW OLLE: But that's the only sort of penalty, is it? I mean, the result can't be overturned?

BRIAN NUGENT: The result, of course, can't be overturned by the Electoral Commission but ...

ANDREW OLLE: It could be used as a basis for a challenge somewhere else.

BRIAN NUGENT: Yes. Candidates, of course, have the right to go the Court of Disputed Returns.

ANDREW OLLE: And does that sound to you like possible grounds? I'm not asking you to judge on this particular case, but that sort of issue.

BRIAN NUGENT: Andrew, that's something that candidates would have to decide for themselves.

ANDREW OLLE: I see. But prima facie, from what we've been told, it is a breach of that section 351, but from your point of view - as yet you can't confirm that because you haven't even seen the material, but you can confirm there has been a complaint, you will look at it. But the most you can do, if there is a breach established, is fine $1,000.

BRIAN NUGENT: That would be the most we could do. We would have it investigated; we would then seek advice from our legal advisers. But so far as disputing the election is concerned, that is something for the Court of Disputed Returns.

ANDREW OLLE: Okay. I appreciate you clearing that up for us. Thank you very much indeed. Maybe we should see if we can get some of the opponents on this. As I said, the Liberals have complained about it; I don't know if they've all written, but I know they've all said that they were going to get in touch with the Electoral Office; the Liberal candidate, the Democrat candidate, one of the Independents and the Green candidate. I thought we should talk to Karin Sowada, who is from the Democrats Party. She's the campaign director, indeed, for the Democrats here in New South Wales and she joins us on the line now. Good morning Karin. Thank you for your time. Have you made any formal approach to the Electoral Office?

KARIN SOWADA: Yes. I was the one who, in fact, rang Mr Nugent about the matter. I have subsequently received a copy of the how-to-vote card from our candidate in Robertson, and it is my intention to send that to him, asking for him to take action under section 351 of the Electoral Act. I mean, it is perfectly true that fines are payable for misleading information and we are certainly very, very concerned about this. I think that the point that we are worried about is that our present policy for this election was a split ticket; that is, we showed effective preferences through both the ALP and the Liberal Party, through like-minded Independents, and this how-to-vote, which looks very much like it was put out by the ACF and the Wilderness Society, gives preferences to the Labor Party, which was not our preference policy at all. So we are certainly concerned about that and also concerned about the issue that Barry Cohen raised earlier, that it leaves the field open for anybody to put out how-to-vote, purporting to support a candidate who, in fact, does not support that group or organisation at all.

ANDREW OLLE: I suppose you're in a strange position, aren't you, to be complaining about the fact that someone said, vote you first.

KARIN SOWADA: Well, I think that Barry Cohen pointed out the tremendous irony of that, and I guess that is something that the ALP are going to have to take in hand through their own disciplinary measures. But I think certainly the ALP must view this as an extreme version of Senator Graham Richardson's desire to ensure that the ALP acquired as many Democrat preferences as possible. But I think that this tactic is certainly taking that a bit too far.

ANDREW OLLE: Well, you've said that you're going to take it up with the Electoral Office, but you also heard from the electoral officer a moment ago that, in fact, if a breach is established, the best they can do, from your point of view, is a fine of $1,000.

KARIN SOWADA: In fact, for a body corporate the fine is $5,000 and the how-to-vote in question says, 'Authorised by A. Reith, on behalf of the ALP.

ANDREW OLLE: So okay, a $5,000 fine for the party, but frankly it's not going to break them.

KARIN SOWADA: No, certainly not.

ANDREW OLLE: So what about that other alternative of going to the Court of Disputed Returns?

KARIN SOWADA: That is obviously something that we will have to discuss carefully with our Robertson people, and if it appears that we have a good case, we will certainly take it that far, yes.

ANDREW OLLE: Okay. Thank you for your time this morning. Good to talk to you.

KARIN SOWADA: Thanks, Andrew.

ANDREW OLLE: An issue, I suspect, we haven't heard the last of, the contentious seat of Robertson. Any seat is contentious in an election, but the result of this one is rather contentious, with the Labor Party getting in, ultimately, quite comfortably, but getting a good spill of preferences from the Greens and the Democrats, and now you might understood why they were told to vote for them first.