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Finance and Public Administration Legislation Committee
Australian Electoral Commission

Australian Electoral Commission


CHAIR: We are going to deal with the AEC. 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 do not.

Senator LINES: Mr Rogers, you and I have been corresponding about Barrow Island. Thanks for your assistance so far. I want to go to what I think is the most recent letter we have received from you, which is dated 14 April.

Mr Rogers : I will not have that in front of me. I am happy to discuss it.

Senator LINES: You referred us to Ms Marie Neilson, so actually it is a letter from her. I note the second sentence of the second paragraph of the letter. I will read it so that we are clear what I am discussing. She says, 'I accept the company's advice that the establishment of in-person voting services is not possible on the island'—that being Barrow Island—'due to quarantine restrictions, and this means that postal voting is the only option available', et cetera. I want to go specifically to the quarantine restrictions and get you to outline for us what the restrictions are.

Mr Rogers : Sure. I do not have the exact detail in front of me, but from memory—to be helpful—we are told that accessing the island is very difficult because of the material that we need to bring on the island to conduct polling. As you and I might have corresponded about, I am aware that there are quite a number of potential voters on the island, and we do want to try to provide them with a service. As I understand it, we are working with Chevron to ensure that everybody who is on the island will have access at least to postal voting. You might be aware that at the last federal election and also at the Canning by-election we did provide additional services in all of the various FIFO airports in Perth to make sure that we could provide everyone with a vote. That is what we are working on at the moment. I think I have seen the letter that you have got in front of you. I think Ms Neilson, who is our state manager and electoral officer in WA, is continuing to work with Chevron to make sure that everyone has access to a postal vote. Again, I think we have been assured by Chevron that that will be possible, and that is what we are working on at the moment.

Senator LINES: Mr Rogers, perhaps you are not quite aware of the shift patterns. A number of workers on Barrow do a four-week stint, so having polling available at the airport does not suit the workers who are caught in that time between when early polling opens—

Mr Rogers : I absolutely acknowledge that it will pick up some of the workers but not all of the workers. We intend to do that as well.

Senator LINES: The issue with postal voting is that, because of the remoteness of Western Australia and in particular Barrow Island, making the application and getting the postal vote is also very difficult, because it can take two or more weeks for postal ballots to arrive in regional Western Australia.

Mr Rogers : That is correct. It is also one of the reasons why with this election we are doing online applications for postal votes to streamline that process. I point out—I know you are aware of this—that it is not just the electors on Barrow Island; there are a range of Australians who can only truly access the vote through postal votes. The services we are providing to electors on Barrow Island in a way match what we are providing to members of the ADF who are deployed overseas and cannot get to a polling place, and we are providing them with a postal vote. We continue to work with Chevron and we are going to make sure that those services are provided. I am happy to follow up again for you with Ms Nielson as well, and provide you an update on where we are with that.

Senator LINES: Online is unlike the ADF. I had the absolute privilege of seeing our bases in the UAE in January. With the ADF you have staff working a number of different rotations. But that is not the case at Barrow Island. I have also visited Barrow Island. What you have are thousands of staff doing 12-hour shifts. They are starting and finishing at the same time, so the online facilities are also not adequate on Barrow Island. I think these present real issues. I have used the online facilities at our bases in the UAE, and they are absolutely first-class—and you do not have thousands of Defence personnel trying to use them at the same time, as you do on Barrow Island. They experience dropouts and all sorts of things.

What I am struggling to understand—and I think we have copied you into all of our correspondence—is what the quarantine issues are, exactly. I do not know, perhaps you have not visited Barrow Island, but the Chevron facilities up there are absolutely amazing; there are steels that are massive and so on. So I do not really understand what the issue is about taking cardboard ballot boxes and paper onto Barrow Island when quarantine is just part and parcel of what Chevron do. They do it very well, every day of the week. The whole structure on Barrow Island has been through quarantine—massive steels, machinery and trucks and everything—so I do not really get why we cannot take flat-packed cardboard boxes and paper ballots onto the island. That is the piece I am really struggling with.

Mr Rogers : I am happy to take that on notice and talk to Ms Nielson to find out where we are with that. I think when you last wrote—and I will correct my evidence here if I am incorrect—we contacted Chevron again to ensure that that was the answer, that we could not get access to the island.

Senator LINES: What do you mean by that? That is the answer you have given me.

Mr Rogers : I know you are also aware of this, but there are many polling places where sometimes it is difficult for us to get access. It is for a range of issues: we do not control surrounds and we have to work with the owner of the polling place. I might cite a couple of examples.

Senator LINES: I do not want to be rude, but I really do want to just focus on Barrow. Certainly, in the AEC's letter to me of 14 April you do make it very clear that what is stopping you are the quarantine restrictions. That really is what I want to focus on. What is it about the quarantine restrictions that is stopping the AEC from providing on-site voting facilities at Chevron? You just need to imagine a massive site with massive ports, massive steels, massive infrastructure—trucks, cars and living quarters, everything—which have all been through quarantine. I just do not understand why we cannot put some flat-pack voting boxes and ballots and electoral rolls, which is all paper material, up on Barrow Island.

Mr Rogers : Essentially, as you are aware, we work with companies like Chevron. If they say we cannot get access because of quarantine issues, at the end of that process that is a matter for the company to tell us that. When we speak to organisations like that we do point out the importance of the process that we are going through, but when we receive advice that for quarantine reasons we cannot proceed then we try to explore alternative options.

Senator LINES: I have subsequently had a look at the quarantine provisions—and, again, we did send you the letter that we sent to Chevron most recently. But I will read you what we ascertain to be the quarantine provisions:

We have looked at Chevron's quarantine management system, their QMS, available and applicable on Barrow Island, and we note that that the Chevron policy states that it will only engage contractors and suppliers who have demonstrated a willingness to meet or exceed quarantine standards.

I am assuming the AEC would be willing to meet the standards. So we have asked Chevron to provide us of what the risk score is that they have applied to you. We have also asked them to supply to us what the risks to quarantine are from you being on the island are and we have asked them for copies of reporting and consideration by an independent quarantine export. Presumably that would be in the correspondence you have had between Chevron and the AEC, where presumably Chevron said you cannot meet their quarantine standards. Is this something you can table today?

Mr Rogers : I will not be able to table it today but I am happy to take it on notice. We have got that correspondence.

Senator LINES: Can you just run us through what the assessment is? You said 'we want to explore the option of putting out a polling station up on Chevron' and at some point Chevron has come back to you and said that the AEC cannot meet the standards. Talk us through how those discussions progressed.

Mr Rogers : I cannot give you the detail of that but I can tell you we have got 7,000 polling places that we individually procure at election time. Barrow Island is an important place with a large number of electors but so are many others of our polling places. We work with a large number of organisations from local schools, church halls, shopping centres and a whole range of other providers for polling places. We have to negotiate with them access to those polling places.

Senator LINES: I am sorry to interrupt, but I really do just want a focus on Barrow. You have said to me

I accept the company's advice that the establishment of in-person voting services is not possible on the island due to quarantine restrictions.

What I am trying to get to is what processes, what correspondence, what negotiations occurred between the AEC and Chevron that Chevron said to you, to the AEC, 'you cannot meet the quarantine standards', which is what you have said to me in this letter. Step us through that process, please.

Mr Rogers : That is what I am answering. I have 7,000 polling—

Senator LINES: I do not want to hear about the 7,000; I want to hear about Barrow because you said to me:

I accept the company's advice that the establishment of in-person voting services is not possible on the island due to quarantine restrictions.

I want you to talk about that, please.

Senator McALLISTER: I wonder, as a starting point, was that written advice? That would be a good start in answering Senator Lines' question.

Mr Rogers : That is what I am getting to. You are asking me, as commissioner, about a polling place amongst the 7,000. You are asking me to talk you through the details of that polling place. What I am saying to you is in the process of running an election and procuring 7,000 polling places, there is a whole range of steps that we go through. We work with the organisation that owns or controls the polling place. We do a polling place assessment strategy in each electoral cycle.

Senator LINES: I accept that. I really do want you to focus on Barrow Island because there are other senators here that have no doubt got questions to you. I have accepted at face value your letter to me where you said Chevron have said you cannot meet quarantine restrictions. As you just heard from Senator McAllister, was that written advice? How was that advice conveyed to you?

Mr Rogers : What I am telling you is that those procurement processes are run by our states. I do not go out and view 7,000 polling places—it would be a fantastic job if I could go around and do that but I do not. I rely on the advice of my state managers.

Senator LINES: How do we get to the bottom of this? How do we get the answers to these questions?

Mr Rogers : I have already said that I will take this on notice and give you an update on where we are with our negotiations with that and that is as much as I can do today.

Senator LINES: Does that mean you have got ongoing negotiations with Chevron about an on-site polling place?

Mr Rogers : No, I will find out where we are with the current state of play and provide you an update on that.

Senator LINES: Mr Carpay is talking to you so obviously he is getting information from somewhere.

Mr Rogers : The last meeting we had with Chevron was on 27 April.

Senator LINES: Of this year?

Mr Rogers : Yes.

Senator LINES: What was that in relation to?

Mr Rogers : It was in relation to the issue that we are just talking about. I am not quite sure of the outcome.

Senator LINES: How did that meeting happen? Was it a face-to-face meeting? Was it an email?

Mr Rogers : It was a face-to-face meeting, as I understand it.

Senator LINES: Was it about the provision of on-site—

Mr Rogers : On 27 April—and, because I have not seen this before, I am going to have to confirm this detail—Chevron confirmed that we are not able to establish in-person voting facilities on Barrow Island.

Senator LINES: What reason did they give?

Mr Rogers : Quarantine.

Senator LINES: What we need to understand is: what is it the AEC cannot meet?

Mr Rogers : I do not know. I am providing you with advice from Chevron. They have said we cannot access the island. I do not own that island. I cannot force Chevron to allow me to—

Senator LINES: No, but surely you can ask them which aspects. Their quarantine provisions say that they will only engage contractors and suppliers who have a demonstrated willingness to meet their quarantine standards. I am assuming the AEC has a willingness to meet their quarantine standards.

Mr Rogers : Senator, you are asking me a series of questions. As I have already said, I do not have the detail for you. I am happy to repeat that ad infinitum. Our aim is to provide the voters who are on Barrow Island with access to a vote. That is what we are doing at the moment.

Senator LINES: How long did the meeting go for on 27 April?

Mr Rogers : I do not have that detail in front of me. I am happy to take that on notice.

Senator LINES: Mr Carpay, you got some advice. Who is advising you?

Mr Carpay : Ms Marie Neilson, who is our state manager. She provided us with advice that on 27 April she had a meeting with Chevron where they discussed options for providing voting services.

Senator LINES: Was that advice written?

Mr Carpay : I am reading from an email that has been forwarded to me.

Senator LINES: Can you table the email.

Mr Rogers : No. We will take that on notice.

Senator LINES: What is the problem?

Mr Rogers : I have not seen the email. When I have looked at the email in detail, I will make a decision about whether I can table that email.

Senator LINES: What would be an email that Senate estimates could not have?

Mr Rogers : I have not seen the email yet, so I do not know.

Senator LINES: What could possibly be in the email? It is not privileged to the minister.

Mr Rogers : I do not know. I have not seen the email.

Senator LINES: I am asking you to say to us—I do not understand. If it is an email about a meeting between Chevron and the AEC, what could possibly be in that email that you could not table to Senate estimates?

Mr Rogers : When I see the email, I will know. I have not seen the email. Then I will make a decision about whether that can be tabled, but I am not going to table an unseen document. I think it is unreasonable for you to ask that. When I look at the email, I will see whether we can table it. I will take that on notice.

Senator McALLISTER: Mr Rogers, the challenge we are facing is that time is of the essence. Everyone understands that we are on the cusp of an election. I am sure it is at the front of your mind. Your proposition that Senator Lines's questions be taken on notice in no way goes to meeting the purpose of this committee, which is to provide scrutiny of the activities of agencies in relation to their functions. In your case, that function is securing the integrity of a national election, which includes providing opportunities for people to vote. Senator Lines is making a series of arguments and has a proposition that the people working on Barrow Island are entitled to vote. I think it is reasonable that you think of some more creative ways to address quite legitimate concerns than taking things on notice, which we all understand is a course of action that will never come to fruition.

Mr Rogers : Just hang on, Senator. I think you have made some allegations there that I would like to address.

CHAIR: Mr Rogers, before you do, taking things on notice is entirely appropriate for all officers. Secondly, there is a provision—notwithstanding what might happen in the next two or three days—for questions that have been taken on notice to be reintroduced simply at the instigation of the Senate when it resumes.

Senator McALLISTER: After an election.

CHAIR: It may well be after an election, but this is the circumstance we find ourselves in. Mr Rogers, I would invite you to respond to Senator McAllister, and then I would seek the agreement of Senators Lines and McAllister for two minutes with Senator Xenophon and Senator Leyonhjelm. Then we will come back to you.

Senator LINES: Before we do that, Chair, I am really struggling to understand why an email between Chevron and the AEC cannot be tabled. It does not involve privilege or matters to the minister.

CHAIR: Mr Rogers can respond to Senator McAllister, firstly. You might like to refer to what Senator Lines is inquiring into.

Senator LINES: I guess I am seeking some advice from you as to—

CHAIR: I need to listen to his response first.

Senator LINES: what might stop Mr Rogers from tabling the email today.

CHAIR: Mr Rogers, could you respond to Senator McAllister. I will get some advice.

Mr Rogers : I have endorsed all of those points.

Senator McALLISTER: Which points?

Mr Rogers : The point that we provide the franchise to all Australians. That is what we are doing. We go the extra mile to do that. At the Canning by-election, as I mentioned previously, we set up additional polling places in FIFO airports in Perth, to cater for fly-in fly-out workers deliberately for this process; we put ads, I think, in the industry newspapers in Perth; we did a whole range of extra things to cater for these individuals. It is what we do in remote communities. It is what we do with the ADF. We provide Australians with access to the vote.

I have been responsive to Senator Lines. We have had some polite correspondence between us. We have tried to answer the questions that have been raised. I have had my state manager working with Chevron and I would point out that this is one group of Australians amongst the many electors that we are trying to work to provide the franchise to. That is what we are doing, and I am acknowledging the point that Senator Lines is making. They are an important group of voters and we are trying to provide them with services. That is the first point. The second point is that we have responded to the letters that you have provided to us. I am telling you that we have to rely on the advice that we have received from Chevron. Today, that is as much as I know. The second question was: why won't I release a minute? Because I have not seen the minute, and I am not going to release a minute, sight unseen, to this committee.

CHAIR: On that point, and I have had some advice and updated myself on the circumstances, it is entirely appropriate. If I understand this, you have taken Senator Lines' request on notice—

Mr Rogers : That is correct.

CHAIR: And that should end the matter—because it has been taken on notice, which is entirely appropriate. Senator Lines, can I come back to you. Senator Xenophon.

Senator XENOPHON: Mr Rogers, it is probably no surprise what I will be asking you about. Can you tell this committee whether all of the paper to be used for the ballot papers for the election, the AEC election materials produced for the AEC, will be Australian made paper or not, because I have been told by paper industry sources that there will be some other paper coming from overseas.

Senator LEYONHJELM: It is too expensive.

Senator XENOPHON: Yes, it is.

Mr Rogers : You will not be surprised that there is a multifaceted answer here, so, if you would bear with me for a moment. The first point to make is that we are bound by the Australian procurement guidelines. So, in all the procurement that we do, we exactly follow the Australian procurement guidelines. Whatever flows out of that, in terms of the products we get, that is the product that we get.

Senator XENOPHON: Does value for money for you include the social and economic benefits of procuring paper locally?

Mr Rogers : I will come to that. We follow the procurement guidelines in detail. And we are not actually procuring paper, if I can put that on the table as well; we are actually procuring printing services. We procure printing services to print the ballot papers, and the printers procure the paper on our behalf.

Senator XENOPHON: And you do not make it a condition of the contract or the tender that it be Australian made paper?

Mr Rogers : That would be breaching the procurement guidelines, if we made that requirement.

Senator XENOPHON: Is that your interpretation or have you been told that by someone, such as Finance?

Mr Rogers : I will interrupt my answer for a moment, because I have Mr Pirani with me, and he might talk about that process. But our interpretation is that we are unable to—he is holding up a document—

Senator XENOPHON: My eyesight—

Mr Pirani : I have a copy here of the submission to the Finance and Public Administration References Committee inquiry into Commonwealth procurement procedures, paper procurement, where Finance make it very clear in relation to it that we are unable to discriminate against products that are procured and made here in Australia over those that are made overseas. Paragraph 2.1.1 of their submission states:

Consistent with Australia’s international trade obligations, the CPRs require potential suppliers to government to be treated equitably based on their commercial, legal, technical and financial abilities and not be discriminated against due to their size, degree of foreign affiliation or ownership, location, or the origin of their goods and services.

Mr Rogers : However, given the media surrounding this, I did make some inquiries, and I can tell you that as I understand it our printers in New South Wales and Tasmania—so, probably about a third of where we are—will be using Australian paper. I am not sure about the rest, but at this stage New South Wales and Tasmania will be.

Senator XENOPHON: On notice, will you be able, ultimately—once the dust has settled and you have gone through the counting and other important issues that you have to deal with—to advise how much of that paper has been made in Australia?

Mr Rogers : I think we should be able to find that out, so I am happy to take that on notice.

Senator XENOPHON: At this stage, you cannot tell us. In the meantime—

Mr Rogers : But I can tell you at least for New South Wales and Tasmania—we have been able to ascertain that, and I will take the rest of that on notice.

Senator LEYONHJELM: No South Australian paper.

Senator XENOPHON: But at this stage, two-thirds of it could be sourced from imported paper?

Mr Rogers : Potentially, but, again, I will take that on notice.

Senator XENOPHON: Thank you, very much.

Senator LEYONHJELM: They do not use paper in South Australia anyway.

CHAIR: One senator has already been in trouble for—

Senator LINES: Where is Senator Dastyari!

Senator XENOPHON: It's best not to say anything negative.

Senator LEYONHJELM: Mr Rogers or Mr Pirani, this may have been dealt with in previous forums. I am just wondering: does the Electoral Commission have the power to initiate prosecutions in its own right, or does it refer them to the DPP?

Mr Rogers : I will get Mr Pirani to talk about that, but it depends on the specific issue that you are talking about, because it differs.

Mr Pirani : The bottom line is that all Commonwealth prosecutions have to go through the Commonwealth Director of Public Prosecutions. We have certain powers in the funding and disclosure area to conduct investigations separate from the Australian Federal Police, but we cannot instigate prosecutions in our own right. That is section 6 of the Director of Public Prosecutions Act.

Senator LEYONHJELM: In the Electoral Act, there is a provision prohibiting misleading and deceptive conduct, as I recall?

Mr Pirani : Section 329, which applies during the relevant period, the 'relevant period' being defined in section 322 as the period between the issue of the writs and polling day.

Senator LEYONHJELM: Excuse my ignorance, but would an offence against that amount to a civil wrong or a criminal wrong?

Mr Pirani : The offence of section 329 is a criminal offence. There are no civil wrongs in the Commonwealth Electoral Act. Section 329 is punishable:

(a) if the offender is a natural person--by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months, or both; or

(b) if the offender is a body corporate--by a fine not exceeding $5,000.

Senator LEYONHJELM: All right. Under the new Electoral Act—or the Electoral Act as amended recently—there has been much debate about whether advice to voters to just simply vote '1' above the line in the absence of anything else amounts to misleading and deceptive conduct. How would a prosecution under that section be initiated? Would it be on the advice of the commission or some other source of advice to the DPP?

Mr Pirani : Because the offence is actually a summary offence, anybody could commence a prosecution under section 13 of the Crimes Act 1914.

Senator LEYONHJELM: Can you just explain that? Anyone can initiate it?

Mr Pirani : Under the Crimes Act, if it is a summary offence any person is able to commence a prosecution.

Senator LEYONHJELM: What process would that involve?

Mr Pirani : The person would have to go and lay an information, go to court and commence a private prosecution.

Senator LEYONHJELM: A private prosecution—okay. I was not aware of that.

Mr Pirani : There is another power in the act, that a candidate can go to court and seek an injunction to prevent any continuing breach of the act—that is section 383. The Australian Electoral Commission also has the power under that same provision to go to court to seek an injunction to injunct and prevent the continuation of any conduct that is in breach of the Commonwealth Electoral Act.

Senator LEYONHJELM: All right, thank you.

Senator McALLISTER: Can I ask quickly about the arrangements for the same-sex marriage plebiscite? It is obviously unprecedented in modern times. Have you been asked to undertake work around the way that such a plebiscite would be delivered?

Mr Rogers : Have we been asked to undertake work?

Senator McALLISTER: Have you been asked to make preparations for a plebiscite on same-sex marriage?

Mr Rogers : No; I am not trying to be cute. I have not, but I do not think anyone in our organisation has been asked that question either: to undertake work to prepare for a same-sex marriage plebiscite.

Senator McALLISTER: I note that $160 million has been allocated in a contingency reserve for this process. On what basis was $160 million provided for in the budget?

Mr Rogers : I note at the outset that a plebiscite is different from a referendum, which is relevant to the answer I am about to give you, and it is also different from an election. I would have to check, but I think I am on record either at Senate estimates or the Joint Standing Committee on Electoral Matters, or we might have even given a submission—no, there you go: the Legal and Constitutional Affairs References Committee. On 4 September last year I provided some indicative costing and said:

If a plebiscite were conducted as a referendum and as a stand-alone event, that is, not in conjunction with an election, the AEC estimated that the total cost would be $158.4 million.

My presumption would be—and it is only a presumption—that the $160 million figure may have come from an indication that I gave at that time. And to go further: the point I made was that the shape of a referendum looks and smells very much like an election. It is specified in the act. But there is a lot more choice with a plebiscite. Essentially, it is almost a contract between government and us: they tell us what they want to deliver, and we deliver that plebiscite accordingly.

Senator McALLISTER: Have you provided any further advice since September to government about the costs of a referendum-style plebiscite or any other kind?

Mr Rogers : No.

Senator McALLISTER: There has been no further communication on that matter?

Mr Rogers : No.

Senator McALLISTER: And we can assume that a referendum-style plebiscite, following the shape of a referendum—well understood—would involve compulsory participation by all electors?

Mr Rogers : Again, that would be a choice for government. But the presumption would be that if it were to look like an election then that may well be one of the components of that.

Senator McALLISTER: The government has previously said it wanted to hold this plebiscite before the end of the year. You have not received any instructions to prepare for such a plebiscite. Admittedly, it is now May—what kind of time frame would be required to prepare for a plebiscite of any kind?

Mr Rogers : I would have to trawl over a couple of answers we have given over some years on this matter. But if I am channelling what I think is accurate, I think we have said that we would—we have said in black and white, so I am not channelling anything—need a lead time to procure materials. I think I have used the term previously that we would need about four months between those events. I think that is the advice I provided previously. I can check up on that for you. But as you can imagine we would have to reorder material and do a whole range of things. Finishing the election is something we need to tie up in any case before we move forward.

Senator McALLISTER: Are there any particular distinctions between a general election and a referendum that add or, indeed, minimise costs for you in conducting a ballot?

Mr Rogers : We are talking about a referendum that is outlined in the act; it looks and smells like an election and costs like an election.

Senator McALLISTER: So there is very little distinction between a general election and a referendum in terms of costs for the agency.

Mr Rogers : The only difference is probably the yes and no case. I am just looking at Mr Pirani. The preparation of the yes and no case—

Mr Pirani : And scrutiny.

Mr Rogers : And the scrutiny, but other than that it is equivalent.

Senator McALLISTER: I apologise for making you do this again, but when you last provided advice to the Legal and Constitutional Affairs References Committee did you provide advice about the costs of supporting the yes and no cases?

Mr Rogers : When I said 'prepare the yes and no case': we publish the yes and no case—just to be specific. But I do not think we broke down that cost. I would have to take that on notice. There is a submission there, but I think we provided an overall figure rather than a breakdown of costs.

Senator McALLISTER: Moving on to something separate: I know that we have quite recently had a discussion about associated entities, but I wish to return to that. Just for the benefit of other senators, can we revisit the basic definition of an associated entity under the act?

Mr Rogers : Certainly, Senator. If you do not mind, I might pass to Mr Pirani.

Senator McALLISTER: He has, as you said before, a near-photographic memory in this regard.

Mr Rogers : He does indeed. Associated entities are his thing.

Mr Pirani : The definition of 'associated entity' is contained in section 287 subsection 1 of the Commonwealth Electoral Act 1918. In essence, there are five different paragraphs there, from (a) to (f), that deal with the various grounds, and there is a definition of 'entity'. An entity has to be:

(a) an incorporated or unincorporated body;

(b) the trustee of a trust.

An associated entity is:

(a) an entity that is controlled by one or more registered political parties; or

(b) an entity that operates wholly, or to a significant extent, for the benefit of one or more registered political parties; or

(c) an entity that is a financial member of a registered political party; or

(d) an entity on whose behalf another person is a financial member of a registered political party; or

(e) an entity that has voting rights in a registered political party; or

(f) an entity on whose behalf another person has voting rights in a registered political party.

The one that causes the AEC the most issues is the paragraph (b) definition: 'an entity that operates wholly, or to a significant extent, for the benefit of one or more registered political parties'.

Senator McALLISTER: Is it necessary for an entity to register as such with the AEC for it to be considered an associated entity?

Mr Pirani : No.

Senator McALLISTER: So it is simply a matter of law; it either fits the definition or it does not. Although, as you say, adjudicating that definition from time to time causes you a challenge.

Mr Pirani : Indeed, particularly given that an entity's operations can change over a period of time. They may or may not continue to be a financial member of a registered political party or have voting rights. Over a period of time, that can change.

Senator McALLISTER: Nonetheless, it is not up to a particular person to make a decision about whether their organisation is or is not an associated entity; it is simply a matter of law. The AEC or the court can make a finding that an entity is an associated entity.

Mr Pirani : We do not actually make a finding per se. We have the power to examine and to seek information about whether a particular entity is an associated entity. That is under section 316.

Mr Rogers : Mr Pirani will correct me, but essentially we are not deciding that they are an associated entity, rather that they have an obligation to submit a return as an associated entity in a particular year.

Mr Pirani : Our experience is that most associated entities self-declare.

Senator McALLISTER: You have raised disclosure. I think you have said here or previously that they must submit an annual return.

Mr Pirani : That is correct.

Senator McALLISTER: Can you just through the basic information in the annual return? You probably do not have to read the entire act, but you could just lay out the basic things that need to be there.

Mr Pirani : The relevant provision is section 314AEA, which is for annual returns by associated entities. In short, it is:

(a) the total amount received by, or on behalf of, the entity during the financial year—

together with any details of amounts above the threshold—

(b) the total amount paid by, or on behalf of, the entity during the financial year; and

(c) if the entity is an associated entity at the end of the financial year—the total outstanding amount, as at the end of the financial year, of all debts …

Senator McALLISTER: Who is responsible for fulfilling those compliance obligations?

Mr Pirani : The act refers to the financial controller of the associated entity.

Senator McALLISTER: How does the AEC determine who the financial controller is?

Mr Pirani : Again, that is a question of fact that can vary because most entities will not necessarily have a person in the organisation who has a title of 'financial controller'. We will try to chase down who is in charge of the financial accounts and get any additional information we require after we get a return.

Senator McALLISTER: If they do not submit a return, you obviously exercise discretion about how to respond to that. What are ultimately the penalties that can be imposed for failing to submit a return?

Mr Pirani : The penalties for a failure to lodge returns is in section 315 of the act. In essence, if they fail to furnish a return within the required time $1,000 is the penalty. There are various offences in there. For an incomplete return, in 315(2), the offence is $1,000. Where a person lodges a return that contains particulars that, to the person's knowledge, are false or misleading, it is a fine of up to $5,000. There are various other ones there, and they are all $1,000 penalties.

Senator McALLISTER: Those offences that you referenced: failing to submit a return or submitting a return with false information—are they criminal offences?

Mr Pirani : Yes.

Senator McALLISTER: Does that prohibition on making false returns just apply to associated entities, or is it a requirement that is placed upon all the reporting entities, like political parties?

Mr Pirani : It is on all reporting entities.

Senator McALLISTER: So if a political party lodges an annual return with the AEC and there are deliberate falsehoods there about the identity of donors, then that would be a criminal offence?

Mr Pirani : Yes, if we could prove beyond reasonable doubt that the person had the requisite intention or knowledge at the time they lodged the return.

Senator McALLISTER: How far does that chain of responsibility extend? If I am someone who is raising funds for a political party and I lie to the financial controller—because, of course, financial controllers ultimately have responsibility—about the true identity of the donors, knowing that that is false information that will go into the party's return or the entity's return with the AEC, would I be guilty of a criminal offence?

Mr Pirani : Depending on the circumstances, the offence in subsection 4 is:

Where a person (not being the agent of a political party or of a State branch of a political party) lodges a claim.

So it is the actual person who is lodging the return et cetera who is at fault. There is a range of separate offences, and it is going to depend on the circumstances under 315 as to whether the person will be guilty of a possible offence.

Senator McALLISTER: But simply, it does extend beyond the financial controller—there are others who, by deliberately providing false information, may themselves become guilty of an offence?

Mr Pirani : Yes—315(6A) is an example:

A person shall not give to another person, for the purpose of the making by that other person of a claim …

Or, for lodging a return—that is 315(7):

… furnish … information that relates to the return and that is, to the knowledge of the first-mentioned person, false or misleading …

Senator McALLISTER: So if I am raising funds and I tell the political controller of that party, 'Hey, I obtained this donation from my friend Simone,' but in fact the donation came from a property development company or a mining company, then that might be a criminal offence?

Mr Pirani : Potentially.

Senator McALLISTER: I want to ask some questions about a particular entity known as the Fadden Forum, which is a fundraising entity controlled by Stuart Robert—

Mr Rogers : Sorry Senator—I did miss what you said.

Senator McALLISTER: The Fadden Forum.

Mr Pirani : Our understanding is that it is not an entity.

Senator McALLISTER: How have you arrived at that understanding?

Mr Pirani : Our understanding is that it is not separate from the Liberal National Party, and that is why I read you earlier the definition of 'entity' in section 287 of the Act. It has to be an incorporated or unincorporated body or the trustee of a trust. We are aware in the AEC of many of these bodies that have been mentioned and raised in the media, and they are not separate from the relevant political party. They are a federal election-type committee that raises funds for the purpose of the conduct of an election, and they are part of the party itself and are not an associated entity. When the media reports about Fadden Forum were put up earlier this week we immediately did a quick search. That search revealed that, as far as the AEC is concerned, the Fadden Forum is merely a part of the Liberal National Party in Queensland, and it is not an associated entity.

Senator McALLISTER: So it is your understanding that all donations associated with the Fadden Forum are accounted for in the disclosures provided by the Queensland LNP?

Mr Pirani : That is our understanding.

Senator McALLISTER: Have you undertaken any examination of the LNP's disclosures to establish that, or how have you arrived that view?

Mr Rogers : I might just jump in. The news only emerged this week. I think you are referring to the media articles on Monday or Tuesday of this week, I think, from memory. We are aware of it. We did do a quick check to ensure, as Mr Pirani said, that there was no obligation. As to whether we have done any additional work this week, the answer is probably no, I suspect. But we are aware of it and we are looking at it. Unless Mr Pirani has other information that I am not privy to—

Mr Pirani : The only thing I was looking at was whether we might have done a compliance review of the LNP, but it depends on the particular dates on which those payments are made. I recall that the article in The Australian mentioned payments, donations, in the period leading up to the 2013 election, but I am not clear—and I would have to take on notice—whether any compliance review has been done of the LNP in that particular financial year.

Senator McALLISTER: The reason I ask is that you are emphatic that it is not an associated entity, which is encouraging perhaps. I am interested to understand how you have arrived at the assumption that it is wholly within the operations of the LNP. It has been operating for some time. I have an invitation here that dates back I think to 2011, which I am happy to table, that asks the cheques to be payable to the Fadden Forum. It looks to me as a lay observer—you are the expert—as though this is a quite separate entity. I do not understand quite how you have arrived so emphatically at the conclusion that it is not.

Mr Pirani : Again I go back to the definition of 'entity'. It is not whether you have a name—and you can put a name on all sorts of bank accounts et cetera—the act is quite specific: it has to be an incorporated or unincorporated body or the trustee of a trust. Unless it falls in either of those two things it cannot be an associated entity.

Mr Rogers : I think the other thing is, as we discussed at length last week, the AEC has previously provided advice to the joint standing committee that there are probably other ways of regulating this sort of behaviour and we have mentioned previously recommending abolishing associated entities. But at this stage, whilst they are there, as Mr Pirani said, they appear to be part of the party and have fulfilled their obligations.

Senator McALLISTER: I have sought to table a document, Chair. Has that been agreed?

CHAIR: Yes. It is just an invitation to a Liberal Party event.

Senator McALLISTER: It is an invitation to a Liberal Party event. Sadly for you, Senator Bernardi—

CHAIR: I was not invited.

Senator McALLISTER: it is an event that has passed. It refers to a bank account. My experience of seeking to obtain a bank account is that you cannot do that unless you establish that there is an organisation, so what I do not understand is how the Fadden Forum can have a bank account if it is not an organisation.

Mr Pirani : That is certainly not my experience. I am aware of people involved in winding up an estate where the estate still has a bank account and the estate is not an entity. It is not a body incorporated or unincorporated. It is just an issue of providing evidence to the bank and then dealing with the identity verification requirements to establish the bank account in a particular name.

Senator McALLISTER: You are surely not asserting that the Fadden Forum is an estate.

Mr Pirani : No, but you have asserted to me that you have to be an entity to do it.

Mr Rogers : As I understand it—again to be helpful—a party like the ALP or the LNP could still establish a bank account in a different name as part of that party in any case. You could call it whatever you want to. It does not necessarily mean you have associated entity status. I would suspect that most parties would have a variety of different bank accounts for such reasons.

Mr Pirani : Indeed, political parties as a matter of law in most jurisdictions are voluntary associations of members; they are not unincorporated or incorporated bodies.

Senator McALLISTER: There have been a series of issues, as you know, raised in the media about the Fadden Forum and you have said that you have already taken a bit of a look at it, it having been raised in the media. What will happen next?

Mr Rogers : We have examined it. We have established that to all intents and purposes it appears to be part of the LNP. As I mentioned at the committee hearing we had last week, we use information such as this—that feeds into our risk based matrix—when we then select our annual crop of compliance reviews and that will influence how we proceed on that basis in any case.

Senator McALLISTER: In your risk matrix, which we have learnt about?

CHAIR: I think the key thing is that Mr Rogers has identified through investigations that the Fadden Forum is part of the LNP.

Senator McALLISTER: Can I ask about a separate media report that appeared in The Australian? I seek to table that also, Chair. It raises a donation of $114,000 to the Fadden Forum in the space of just two months in the lead-up to the 2013 election. The article raises the question about whether or not this series of payments genuinely originated with Simone Holzapfel, or if in fact it came from a third party and was simply laundered through her to conceal the donor's true identity—

CHAIR: I would ask you to reconsider the term 'laundered'. I think it is quite pejorative.

Senator McALLISTER: Chair, if it assists you—

Senator WONG: Allegedly laundered?

CHAIR: I think the term is linked to some suggestion that some malfeasance has taken place.

Senator McALLISTER: The suggestion is that there was an attempt to conceal the true identity of a donor.

CHAIR: That is the suggestion from you.

Senator McALLISTER: That is the suggestion from the newspaper article.

CHAIR: I am reading the newspaper article here.

Senator WONG: Chair, can we just say 'allegedly' rather than having a political argument—

Senator McALLISTER: I am certainly happy to withdraw the word 'laundered', Chair.

CHAIR: Thanks.

Senator McALLISTER: I had not understood that you had not got that I was very happy to do that.

Mr Rogers : For the record, I have genuinely not seen that media report. I have not looked at it yet.

Senator McALLISTER: The article notes that the person in question—

CHAIR: It is a public document.

Senator McALLISTER: It is a public document. It says that she is a Gold Coast lobbyist who represents Nimrod Resources, which they say is the mining company at the centre of the scandal that led to Mr Robert's sacking as minister. She is also:

…a long-time lobbyist for the ASF Group—which is involved with two Chinese state-owned companies bidding for a new casino on the Gold Coast—and represents a number of developers from the tourist strip.

Is that story, that set of facts, something which gives you concern as the commissioner, Mr Rogers?

Mr Rogers : I hesitate to comment on that until I have actually read it in detail. I have not seen the article and I am not sure of the nature of the allegations. But, obviously, we do look at what is in the public domain. As I mentioned previously, it helps us target our compliance review program in any given year. We will examine that. I will have a look at it and read it.

CHAIR: Mr Rogers, if you have established that the Fadden Forum is a part of the LNP, and the Fadden Forum bank account is in effect the LNP bank account, then as long as any political party records who donated the funds they would be in full compliance with the obligations of the AEC—is that reasonable?

Mr Rogers : That is correct.

CHAIR: Media speculation about other things, which is uncorroborated—

Mr Rogers : Is speculation.

CHAIR: is scarcely worthy of Senate estimates time.

Mr Rogers : We always examine those things.

CHAIR: You do, yes.

Mr Rogers : We examine the media reports. The point that you have just made is that if it is part of the party structure, which we think it is, and the party has filed its return then they have met their obligations.

CHAIR: I am advised that the Fadden Forum bank account is the LNP bank account.

Mr Rogers : Which I think Mr Pirani was saying before; they can be party bank accounts in any case.

CHAIR: Indeed.

Senator McALLISTER: The reason I tabled this second article is that it raises the issue about whether or not there has been a deliberate attempt to conceal the nature of a donor. Is that something that the AEC will be considering?

Mr Rogers : Again, I will have a look at reports and I will read what you have just tabled. I will examine it from there and come to a view.

Senator McALLISTER: Thank you, Mr Rogers.

Senator LINES: Mr Rogers, just so that I can really understand what it is Chevron is saying you cannot meet with, do you think that by the end of this evening you could table the email that talks about the meeting you had with Chevron on 27 April? Secondly, do you think that by the end of the evening you could give to me whatever it is that Chevron think the AEC cannot meet in terms of quarantine restrictions? I would really appreciate it if you could provide them later tonight.

Mr Rogers : I will certainly take that on notice.

Senator LINES: Thank you very much.

Senator McKENZIE: I just want to ask Mr Rogers a couple of questions about your civics education program. I am just wondering if you are aware of the work of the Constitution Education Fund Australia in civics education.

Mr Rogers : Yes, I am aware of the Constitution Education Fund.

Senator McKENZIE: Has the AEC chosen, or would it seek to choose, to partner with the fund to deliver civics education?

Mr Rogers : I am interested in the work of the fund, and I am happy to talk about that. If I am incorrect, it is not deliberate, and I will correct my evidence later.

Senator McKENZIE: Of course.

Mr Rogers : Thank you. I think we had previously looked at that very issue. I am now going back a few years, but I think they do great work. They have a high profile in schools. I might be wrong, but I think I have even attended a couple of functions that they have done. I am very keen on the work that they do, and I would be happy to examine that again. To be honest, I think that we looked at it, for whatever reason we did not do it, and then it just has not been looked at again. But I think they do a great job.

Senator McKENZIE: Absolutely. They do professional learning for teachers—which is something you do—civics education and development of online education resources. Is that something you could follow up for me?

Mr Rogers : Absolutely. I am happy to.

Senator McKENZIE: Then we can talk about it next estimates.

Mr Rogers : Indeed.

Senator McKENZIE: Thank you.

CHAIR: Thank you very much, officers and senators.