GOVERNANCE AND ACCOUNTABILITY · 2020-07-08 · Section 4: Governance and accountability Management committees 75 Executive Leadership Team The governance review formalised the role

4GOVERNANCE AND

ACCOUNTABILITY

74 Australian Electoral Commission Annual Report 2012–13

4The AEC’s governance framework is characterised by clear lines of accountability, decision‑making and reporting, and defined planning and performance management.

The AEC aims to:

■ meet the objectives for which funding is appropriated ■ demonstrate accountability to parliament and other stakeholders ■ identify responsibility for the management of resources ■ develop, maintain and use information on the full accrual costs and values of

producing deliverables.

In 2012–13, the Executive Management Group initiated a review of AEC governance arrangements. This was in line with advice from the Australian National Audit Office that governance best practice is to engage in regular review and adjustment of governance arrangements. Recommendations included:

■ introduction of four behaviour and operating principles for all governance entities ■ introduction of six process principles, including a regular ‘navigation meeting’, a

forward planned agenda and a governance officer to manage these processes ■ a review of performance reporting, establishing regular ‘health checks’ at the business

unit level ■ consideration of the roles and responsibilities of governance entities.

Implementation of these recommendations will continue in 2013–14.

Management committeesFive senior management, consultation and assurance committees operated in 2012–13. They were:

■ Executive Leadership Team (ELT) ■ Executive Management Group (EMG) ■ National Program Manager/State Manager Forum ■ Investment and Strategies Committee (ISC) ■ Business Assurance Committee (BAC).

Governance and accountability

The AEC has internal and external measures to ensure sound management, accountability and performance. It includes a governance framework, legal services and external, administrative and judicial scrutiny.

Section 4: Governance and accountability Management committees 75

Executive Leadership TeamThe governance review formalised the role of the ELT. The team comprises the Electoral Commissioner, the Deputy Commissioner, and the First Assistant Commissioners.

The ELT is responsible for ensuring the AEC pursues its strategic direction. In 2012–13, the ELT considered major long‑term issues, opportunities and risks to the AEC’s strategic intent and alignment.

Executive Management GroupThe EMG is responsible for leadership, management and sound governance and comprises:

■ Electoral Commissioner (Chairperson) ■ Deputy Electoral Commissioner (Deputy Chairperson) ■ First Assistant Commissioners ■ Assistant Commissioners ■ State and Territory Managers ■ Chief Legal Officer ■ Chief Finance Officer

The EMG supports the Electoral Commissioner in determining organisational priorities in line with the AEC’s three strategic themes of modernisation, collaboration, and investing in our people. Figure 5 shows the AEC organisation as at 30 June 2013.

In 2012–13, EMG translated the AEC’s strategic direction into business plans, contributed to operational management, monitored the achievement of organisational objectives and ensured appropriate corporate governance practices.

National Program Manager/State Manager ForumThe forum comprises state managers and national program managers and was formalised in 2012–13. The forum ensures interaction between state managers and program managers and its focus is to review and monitor core program business‑enrolment, elections, education and communication.

The AEC has internal and external measures to ensure sound management, accountability and performance. It includes a governance framework, legal services and external, administrative and judicial scrutiny.


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Section 4: Governance and accountability Management committees 77

Investment and Strategies CommitteeThe ISC assists the Electoral Commissioner to:

■ articulate the AEC’s strategic objectives, research and planning activities, innovation priorities, challenges and timeframes

■ ensure the overall integrity and coherence of the AEC portfolio to deliver the AEC’s strategic objectives contribute to the AEC’s bottom line and drive value in all programs and projects

■ allocate funding from the AEC’s investment pool to proposals that fit the AEC’s agreed strategic objectives, business priorities, budget, workforce capability, IT architecture and risk management framework

■ monitor project performance against indicators, including budget, expenditure and performance against milestones.

The ISC met five times in 2012–13. The members of the committee were:

■ Deputy Electoral Commissioner (Chair) ■ First Assistant Commissioners ■ Assistant Commissioner Strategic Capability ■ Assistant Commissioner Roll Management (from June 2013) ■ State Manager New South Wales (until June 2013) ■ State Manager Western Australia

The Chief Finance Officer and the Chief Information Officer attend meetings as advisers.

Business Assurance CommitteeOutlined in its charter, the BAC objective is to provide independent assurance and assistance to the Electoral Commissioner and the EMG on the AEC’s risk, control and compliance framework, and its financial statement responsibilities.

In 2012, the BAC role changed to providing assurance and assistance to drive the Electoral Commissioner’s reform agenda to modernise governance frameworks, controls and service delivery.

Key areas of progress include:

■ strengthened risk management practices to improve accountability and inform decision making

■ improved fraud control and rationalised fraud policies and procedures ■ established and tested credible business continuity and disaster recovery processes ■ improved transparency in implementing audit recommendations and progress to

embed whole of government reforms.

The BAC held five meetings in 2012–13. The BAC members appointed by the Electoral Commissioner were:

■ External member Jenny Morison (Chair) ■ Deputy Electoral Commissioner (Deputy Chair) ■ First Assistant Commissioner (Programs)


4 ■ Assistant Commissioner Information Technology ■ State Manager Victoria (to March 2013) ■ State Manager South Australia ■ Northern Territory Manager (from May 2013)

Fraud Control CommitteeThe Fraud Control Committee (FCC) is a sub‑committee of the BAC and assists it to meet its fraud control responsibilities. This includes review of processes to develop and implement the AEC’s fraud control arrangements, including processes and systems to prevent, detect, capture and effectively respond to fraud allegations. The FCC held six meetings in 2012–13 and provided fraud control reports to the BAC. The FCC membership included:

■ First Assistant Commissioner (Programs) (Chair from August 2012) ■ Assistant Commissioner Information Technology (Chair to August 2012, Deputy Chair

from August 2012) ■ Assistant Director Portfolio Management Office (to August 2012) ■ Chief Finance Officer (to May 2013, observer since May 13) ■ Chief Legal Officer (to May 2013, observer since May 13) ■ Northern Territory Manager (from August 2012) ■ State Manager Tasmania (from May 2013)

Planning, operating and reporting frameworkStrategic planThe AEC Strategic Plan 2009–2014 sets out the themes for the AEC’s work programs and performance:

■ modernisation of products and services, and the organisation ■ collaboration with stakeholders ■ investing in our people.

The strategic plan provides the focus for activities, both business as usual and change programs, and is at the centre of the AEC’s planning and operating framework (see Figure 6).

The AEC is currently developing the next strategic plan 2015–2020. The Executive Leadership Team and the full Electoral Commission attended a ‘navigation meeting’ to consider domestic and international trends in electoral participation. The purpose was to ensure the strategic plan recognises current and emerging electoral challenges and the AEC’s capacity to address them.

In 2012–13, a review of priority activities, against strategic objectives and obligations, demonstrated the AEC’s preparedness for both a federal election and referendum. The result was a more focused National Business Plan for 2013–14.

Corporate and business planning documents complement the strategic plan. They address specific operational or functional requirements, as shown in Table 9 (page 78).

Section 4: Governance and accountability Planning, operating and reporting framework 79

Figure 6: Planning operating and reporting framework

Performance Outcomes

Annual Report

Enabling legislation

Other Inputse.g. government

directions, JSCEM recommendations

National Business Planannual

RiskManagement Plan

every two years

Election Preparation Program and Plan

National Program Management Plan

Portfolio Budget and Additional Estimates

Statementsannual

Work Area Plansannual

IndividualPerformance Plans

annual

Branch, State and Territory Plans

annual

Strategic Planevery �ve years

Balanced scorecardThe AEC uses a monthly balanced scorecard report to senior management, which provides financial and statistical information, such as budgets and expenditure, staffing, and enrolment numbers. This information relates to targets or outcomes in business plans.

In 2012–13, the EMG initiated a review of the balanced scorecard to ensure its value in reporting performance, identifying issues and determining remedial action. While the review is underway, compilation of the balanced scorecard will continue.

Internal auditThe 2012–13, Internal Audit Plan provided assurance and highlighted areas for improvement across key frameworks, programs and practices. This ensured compliance with relevant legislation and policies. There were audit reviews in various corporate and IT functions, high risk and new business activities.

A major initiative was a comprehensive review of the implementation of audit recommendations from 2003 to 2011. Particular emphasis was on a select number of significant audit recommendations, rated potential high risk, including the conduct of the 2013 federal election.

The AEC continued to outsource audit reviews to KPMG.


4Table 9: Corporate and business planning documents

Type of document Purpose Reviewed

National business plan

Provides high level guidance on the strategic priorities for the year

Annually

Business continuity plans

Ensures the continuation of identified critical business functions during and following any critical incident that results in disruption to normal operations

Every three years (or sooner in the event of a major restructure)

Corporate fraud control plan

Details the AEC’s approach to corporate fraud prevention, detection, investigation and reporting and outlines AEC procedures and strategies for managing activities that may be more susceptible to corporate fraud and corruption

Every two years

Electoral fraud control plan

Identifies electoral fraud risks and allocates responsibility for the treatment of any electoral fraud risks

Every two years

Election preparation plan

Sets out and monitors the program of activity required to maintain election readiness

Every election cycle

Strategic risk management plan

Details strategic risks that affect the whole of the agency and specifies how these risks will be managed

Annually

Internal audit plan Sets out the program of conformance and performance audits for the financial year

Annually

Disability inclusion strategy

Identifies the National Disability Strategy 2010–2020 target outcomes relevant for the AEC

2020

Health and safety action plan

Sets out activities to underpin health and safety management arrangements

Every three years

Workplace diversity plan

Sets out activities to recognise and value individual differences in the workplace

Every four years 1

Reconciliation action plan

Sets out activities to recognise and respect Aboriginal and Torres Strait Islander people

Every three years

Property plan Direction for long‑term management of leased property

Annually

Security plan Sets out strategies to protect staff, visitors, information, equipment and premises against harm, loss, interference and compromise

Bi‑annually

Agency multicultural plan

Sets out engagement activities and access and equity policy

Every three yearsCommences 2013–14

1. A new workplace diversity plan is being drafted.

Section 4: Governance and accountability Planning, operating and reporting framework 81

Risk management and business continuityThe AEC continues to strengthen risk management and business continuity practices. It participates in the annual Comcover Risk Management Benchmarking Survey.

In 2012–13, the AEC’s risk management score has improved from 6.0 in 2011–12 to 6.4 (out of 10).

In particular, there was a sharp increase in the maturity of the ‘Business Continuity and Disaster Recovery’ capability following significant work and resourcing of business continuity management in 2012–13.

The Electoral Commissioner endorsed a revised risk management framework in February 2013 to better integrate risk management into the AEC’s operations. The improved risk management policy included the requirement for all programs, branches and major projects to develop formal risk management plans, with a quarterly review cycle. The Electoral Commissioner also endorsed the AEC’s first Risk Management Chief Executive Instructions.

In June 2013, the Electoral Commissioner endorsed the AEC 2013–14 Strategic Risk Management Plan, detailing whole‑of‑agency risks. The plan takes into account factors that include new enrolment processes, the tight budget position in the Australian Public Service and considerable focus on the AEC’s administration of the funding and disclosure function.

New enterprise risk registerA new enterprise risk register provides a central point for staff to record, access and manage risks. A central risk register supports a more structured and accessible process for risk management, and aims to encourage and facilitate timely identification and resolution or mitigation of risks with targeted communication to key stakeholders.

The purpose of the risk register is to facilitate quarterly enterprise‑wide risk profiles and reports in 2013–14.

Business continuity planningDuring the year, the AEC developed and approved business continuity plans, including:

■ ballot paper production ■ certified list production ■ postal vote issuing ■ election results ■ contact centre ■ election employment ■ contact centre

■ National Electoral Education Centre ■ internal communication ■ industrial and commercial elections

(NSW) ■ fee‑for‑service (Vic) ■ comprehensive testing as part of the

IT Disaster Recovery Plan.

These plans help to ensure continuity of critical operations in the event of major disruption.

In 2013–14, the AEC will test business continuity and incident management plans.


4FraudRevised FCC terms of reference reflect its review function and advisory role to the BAC. This required an adjustment in the way the AEC manages suspected fraud allegations with the introduction of the new fraud response procedures. The AEC now has a consolidated process for handling fraud allegations, corporate and electoral, that ensures the AEC can respond to fraud allegations in accordance with relevant Commonwealth law, fraud control policies, investigation standards and better practice.

There was a review of the corporate and electoral fraud control plans, which noted the outcomes from the respective fraud risk assessments and mitigation strategies to address them. Further review is underway to combine the plans into one fraud control plan to ensure consistency in approach.

Mandatory e‑learning fraud awareness training modules and fraud control information on the intranet emphasises the roles and responsibilities of all staff.

Compliance with the Commonwealth Fraud Control Guidelines 2002 is in the letter of transmittal (see page 82).

Customer enquiries, issues and complaintsThe AEC receives enquiries and feedback from the public and other stakeholders via telephone, email, social media, facsimile, post and in person.

During 2012–13, the AEC received more than 340 000 phone calls to the general enquiry phone number (13 23 26). This service directs calls to the caller’s nearest divisional office.

To improve service for callers ringing from overseas, a dedicated telephone number was established in November (+61 2 6273 8606). Overseas callers get pre‑recorded messages. If the message does not resolve a caller’s enquiry, redirection occurs to the electoral division based on the caller entering the postcode of their enrolled Australian address. During a federal electoral event, the call will go to the election call centre as a priority call.

The AEC’s enquiries mailbox ([email protected]) received more than 26 000 emails, up from 17 000 in 2011–12. More than 10 700 enquiries were about enrolment and change of enrolment details, 12 000 emails related to overseas voters, the remainder were general enquiries.

The AEC has a new public enquiries reporting tool to improve service for the public and support staff dealing with enquiries. The reporting tool captures volumes, and the nature of enquiries and complaints.

VITS LanguageLink (VITS) provided dedicated language‑specific telephone interpreter information lines for 16 languages and a multi‑language information line. VITS handled approximately 1 300 calls in 2012–13, of which 1 046 callers used the interpreter service to speak to AEC staff. The three top languages used were Mandarin (386 calls), Cantonese (213 calls) and Vietnamese (137).

The National Relay Service is available for callers who have a hearing or speech impairment.

Section 4: Governance and accountability Legal services 83

Ethical standardsIn accordance with proposed Public Service Act 1999 amendments, the AEC is updating all policies, guidelines and e‑learning material in response to recommendations from the Advisory Group on the Reform of Australian Government Administration. The cornerstone is the AEC’s values, outlined in the AEC Strategic Plan and reinforced by the APS Values, Code of Conduct and the Australian Public Service Commission’s REFLECT decision‑making model.

The AEC Enterprise Agreement 2011–2014 highlights a commitment to the APS Values and Code of Conduct.

The AEC actively promotes the Australian Public Service Commission’s Ethics Advisory Service so staff can discuss, seek advice and make sound decisions on ethical issues in the workplace.

Legal servicesThe AEC’s Legal and Compliance Branch provides a full range of legal services. The AEC referred several alleged breaches of electoral laws to the Australian Federal Police during 2012–13.

Legal Services handled 61 allegations of breaches of Part XXI of the Electoral Act. Most complaints related to an alleged failure to include the authorisation details on electoral advertisements in newspapers or on the internet. Of the complaints, Legal Services found four were non‑compliant with undertakings sought to correct the mistake and to ensure that systems were in place to prevent any recurrence. They referred two matters to the Australian Federal Police for investigation.

The Commercial Law and Procurement section advised staff on procurement exercises and contracts, particularly for procurements relating to the forthcoming federal election.

Administrative servicesAdministrative‑related services include:

■ advising of the AEC’s administrative and other responsibilities under the Electoral Act, the Public Service Act 1999, the Financial Management and Accountability Act 1997, the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009

■ advising on a wide range of other legal matters that impacted AEC operations ■ advice and training to help staff meet AEC obligations under the Privacy Act 1988,

the Freedom of Information Act 1982, the Ombudsman Act 1976 and the Archives Act 1983.


4Services to external organisationsWork with other government agencies and legal services, included:

■ instructing the Office of Parliamentary Counsel and preparing supporting material for electoral and referendum legislation

■ instructing the Office of Legislation Drafting and Publication in the preparation of regulations to amend the Electoral and Referendum Regulations 1940.

External requests included:

■ access to the Commonwealth electoral roll from a range of persons and organisations ■ response to subpoenas, notices to produce, and other requirements for the release of

information and documents ■ instructing external solicitors and counsel to a range of matters involving electoral laws

and industrial elections.

Legislation programLegal Services provided input to Cabinet submissions, particularly on electoral and referendum matters.

Legal Services responded to requests and prepared submissions to the Joint Standing Committee on Electoral Matters (JSCEM), including on inquiries into the legislation before parliament in 2012–13.

The AEC was involved with a large legislation program that responds to matters raised by JSCEM and aims to address other government initiatives. These were opportunities to seek support for the AEC’s modernisation theme.

Improving electoral procedureThe Electoral and Referendum Amendment (Improving Electoral Procedure) Act 2013 (Act No. 19 of 2013) amended the Electoral Act and the Referendum Act. This Act implemented the government response to Recommendations 12, 31 and 32 of the ‘The 2010 Federal Election: Report on the conduct of the election and related matters’ (JSCEM Report) as well as a number of technical and minor amendments.

The Act contains provisions that:

■ Removes the prescription relating to how postal votes are processed. The amendments will allow for technological developments over time.

■ Increases the sum to be deposited by or on behalf of a person nominated as a Senator from $1 000 to $2 000.

■ Increases the sum to be deposited by or on behalf of a person nominated as a Member of the House of Representatives from $500 to $1 000.

■ Increases the number of nominators required by a candidate for the Senate or the House of Representatives who is not a registered political party nominee from 50 to 100 electors.

■ Requires unendorsed candidates for the Senate who have made a request for grouping, to each have 100 unique electors as nominators.

■ Makes a number of minor and technical amendments.

Section 4: Governance and accountability Legal services 85

The minor and technical amendments include:

■ removing the requirement that silent electors have to submit another statutory declaration when they move address, but wish to retain their status as a ‘silent elector’

■ taking the word ‘therein’ out of section 174 clarifies that the Divisional Returning Officer (DRO) does not have to be physically located inside the divisional boundary to accept nominations—this recognises co‑locations and larger working unit working arrangements

■ removing the 20 km restriction for general postal voter status, which was an unintended consequence of the 2010 changes to mobile polling legislation meant that no‑one within 20 kms of any mobile polling team is eligible to be a general postal voter—this amendment fixes that anomaly

■ changing the provisional voting conditions to allow a provisional vote to be issued to someone whose name has been marked on an electronic certified list

■ adding in provisions for handling discarded ballot papers that are similar to the existing provisions for handling spoilt ballot papers

■ allowing postal votes to be treated as received on time in cases where they are received in the AEC before the close of polling but the witness date is after polling day—currently such votes, with obviously incorrect witness dates, have to be rejected

■ tidying up the Assistant Returning Officer (ARO) provisions such that officers in charge (OICs), who are appointed as AROs for the count, can count votes for a polling place, pre‑polling voting centre or mobile polling team rather than for ‘a portion of the division’.

Improving electoral administrationThe Electoral and Referendum Amendment (Improving Electoral Administration) Act 2013 (Act No. 26 of 2013) (the Improving Electoral Administration Act) amended the Electoral Act, the Referendum Act and the Taxation Administration Act 1953 (the Taxation Administration Act). The Improving Electoral Administration Act implemented the government response to Recommendations 3, 9, 10, 11, 15, 23, 29 and 30 of the JSCEM Report.

The Improving Electoral Administration Act contains provisions that:

■ set out the procedures to be followed when a ballot box is opened prematurely, that is, before the close of the poll, other than in accordance with the relevant provisions of the Electoral Act and Referendum Act

■ introduce into the Electoral Act and the Referendum Act a specific offence for an officer that unlawfully interferes with a ballot box

■ remove the requirement under the Electoral Act and Referendum Act for an applicant for a pre‑poll ordinary vote to complete and sign a certificate

■ provide that pre‑poll voting cannot commence earlier than 4 days after the date fixed for declaration of nominations for any type of election or by‑election

■ bring forward the deadline for applications for postal votes by one day from the Thursday before polling day to the Wednesday before polling day, for elections after 1 January 2014

■ provide for further fixed periods of time to be provided to the augmented Electoral Commission (as defined in section 70 of the Electoral Act) to complete its inquiries into objections against proposed redistribution of electoral boundaries


4 ■ amend the Taxation Administration Act to allow the Commissioner of Taxation and

other taxation officers to provide some forms of taxpayer information to the AEC for the purposes of administering the Electoral Act and Referendum Act

■ omit provisions from the Electoral Act requiring a minimum font size for the authorisation details on how‑to‑vote cards

■ make a number of related minor and technical amendments.

Referendum Act amendmentsThe Referendum (Machinery Provisions) Amendment Act 2013 (Act No. 34 of 2013) amended the Referendum Act. In December 2009, the then House of Representatives Standing Committee on Legal and Constitutional Affairs reported on the machinery of referendums in the report ‘A Time for Change: Yes/No?’ The report made 17 recommendations. This Act addressed Recommendations 3 and 11.

Recommendation 3 stated that:

“The Committee recommends that the Australian Government introduce amendments to the Referendum (Machinery Provisions) Act 1984 (Cth) to require a Yes/No pamphlet to be delivered to every household, not every elector.”

Subsections 11(1), (2) and (3) of the Referendum Act provide for the printing and posting to each voter a pamphlet, which outlines arguments in favour of the proposed constitutional change and arguments against the proposed constitutional change. The Yes/No pamphlet is a compilation of these arguments.

Recommendation 11 stated that:

“The Committee recommends the Australian Government introduce amendments to remove the current limitation on spending imposed by section 11(4) of the Referendum (Machinery Provisions) Act 1984 (Cth) and include provisions to ensure that spending is directed to referendum education and to equal promotion of the Yes/No arguments”.

Subsection 11(4) generally limits the capacity of the Commonwealth to spend money in relation to a referendum other than on the production and delivery of the Yes/No pamphlet.

This Act implemented the government response to Recommendations 3 and 11 by:

■ amending section 11 of the Referendum Act to substitute a requirement that the Yes/No pamphlet be sent to each address on the electoral roll for the current requirement that the Yes/No pamphlet is sent to every elector

■ temporarily suspending the operation of subsection 11(4) of the Referendum Act until polling day for the 2013 election.

External legal servicesThe AEC spent $447 499 on external legal services in 2012–13. This included fees to firms on the panel of legal service providers, counsels’ fees, court costs and miscellaneous charges. This was an increase of more than 22 per cent from $362 825 in 2011–12. The increase was mainly due to the number of matters involving disputes over the eligibility of candidates to nominate for positions in registered industrial organisations under the Fair Work (Registered Organisations) Act 2009 (Registered Organisations Act).

Section 4: Governance and accountability External scrutiny 87

Under section 182 of the Registered Organisations Act, AEC officers usually conduct such elections for positions in these organisations unless the Fair Work Commission has granted an exemption.

External scrutinyParliamentary scrutinyThe AEC is accountable to the federal parliament, primarily in relation to statutory responsibilities under the Electoral Act, the Referendum Act, and related legislation. The AEC provided evidence to various parliamentary committees. JSCEM remains the primary forum for consideration and public debate on matters relating to electoral laws and practices, and their administration. The AEC supported this and other committees by reporting on a range of electoral matters deemed relevant to the parliament.

Joint Standing Committee on Electoral MattersThe Joint Standing Committee on Electoral Matters (JSCEM) concluded three inquiries in 2012–13.

Inquiry into the Electoral and Referendum (Improving Electoral Procedure) Bill 2012On 16 August, JSCEM concluded its inquiry into the Electoral and Referendum (Improving Electoral Procedure) Bill 2012, the third bill to implement the government’s legislative response to some of the committee’s recommendations from its report on the conduct of the 2010 federal election. The AEC made a submission to the inquiry and provided evidence at a public hearing in Canberra on 16 July 2012.

The Advisory Report on the Electoral and Referendum Amendment (Improving Electoral Procedure) Bill 2012 recommended passing legislation excluding the provisions relating to the removal of persons of ‘unsound mind’ from the roll contained in the Bill.

The government adopted the committee’s findings and the House of Representatives passed the amended Bill on 23 August and the Senate on 25 February with Royal Assent on 27 March.

Inquiry into the AEC analysis of the Fair Work Australia report on the Health Services UnionOn 20 September 2012, JSCEM concluded its inquiry into the AEC’s analysis of the Fair Work Australia report on the Health Services Union. The AEC’s analysis identified 17 possible measures to address the limitations in the Electoral Act highlighted by circumstances covered in the Fair Work Australia (FWA) report. The AEC lodged five submissions to the inquiry and provided evidence at two public hearings in Canberra on 6 and 16 July.

The Review of the AEC analysis of the FWA report on the HSU made 13 recommendations aimed at increasing transparency and accountability in the electoral process, and discussed detailed potential reforms to financial disclosure provisions of the Electoral Act.

To date, the government has not responded to the committee’s report.


4Inquiry into the Electoral and Referendum (Improving Electoral Administration) Bill 2012On 29 November, JSCEM commenced its inquiry into the Electoral and Referendum (Improving Electoral Administration) Bill 2012, the fourth bill to implement the government’s legislative response to some of the committee’s recommendations in its report on the conduct of the 2010 federal election. The AEC lodged three submissions and provided evidence at a public hearing in Canberra on 4 February.

The committee tabled its Advisory Report on the Electoral and Referendum Amendment (Improving Electoral Administration) Bill 2012 on 27 February. The report recommended legislative amendment that provides for the inclusion (or saving) of votes from prematurely opened ballot boxes in the absence of evidence of vote tampering. It also clarified penalties for officers who tamper with a ballot box or ballot papers.

The government adopted the committee’s findings and the House of Representatives passed the amended Bill on 13 March and the Senate on 18 March with Royal Assent on 28 March.

House of Representatives Standing Committee on Regional AustraliaOn 13 February 2013, the House of Representatives Standing Committee on Regional Australia concluded its inquiry into the use of fly‑in fly‑out workforce practices in regional Australia.

The AEC lodged a submission to the inquiry and provided evidence at a public hearing in Canberra on 23 November 2011, informing the committee of the electoral services available to eligible fly‑in, fly‑out and drive‑in, drive‑out workers in the resources sector, and providing information on the electoral services provided at the 2010 federal election.

The committee’s Cancer of the bush or salvation for our cities?: Fly‑in, fly‑out and drive‑in, drive‑out workforce practices in Regional Australia made 21 recommendations, including one recommendation relating directly to the AEC. Recommendation 16 was for the development of an electronic voting system to facilitate easier access to people living and working in remote areas.

To date, the government has not responded to the committee’s report.

Joint Standing Committee on Foreign Affairs, Defence and TradeOn 29 October 2012, the Joint Standing Committee on Foreign Affairs, Defence and Trade tabled Australia’s Overseas Representation – Punching below our weight?

The report is a result of the committee’s inquiry into Australia’s overseas representation, which started on 13 September 2011. The AEC lodged two submissions to the inquiry and provided evidence at a public hearing in Canberra on 17 February 2012. The committee made 17 recommendations, none of which related directly to AEC activities.

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Joint Select Committee on Constitutional Recognition of Local GovernmentOn 29 November 2012, the Joint Select Committee commenced an inquiry into constitutional recognition of local government. The AEC lodged three submissions and provided evidence at two public hearings in Sydney on 16 January 2013 and 20 February 2013.

The committee’s final report was tabled on 7 March 2013. The report recommended holding a referendum on the financial recognition of local government in conjunction with the 2013 federal election. This reaffirmed the recommendations made in the committee’s preliminary report from 24 January 2013.

The government introduced the Constitution Alteration (Local Government) 2013 bill on 29 May 2013. The House of Representatives passed the Bill on 5 June 2013 and the Senate on 24 June 2013.

Section 128 of the Constitution requires submission of the Bill to voters qualified to vote not less than two months and no more than six months after its passage through both Houses. The earliest date to hold a referendum is 14 September 2013 (as it allows two months between the passage of the Bill and the commencement of voting) and the latest date is 21 December 2013.

Senate Standing Committee on Finance and Public Administration On 14 March 2013, the Finance and Public Administration Legislation Committee commenced an inquiry into the Citizen Initiated Referendum Bill 2013. The AEC lodged a submission to the inquiry on 31 May 2013.

The committee tabled its Citizen Initiated Referendum Bill 2013 report on 24 June 2013, with one recommendation that the Bill not be passed.

Joint Standing Committee on MigrationOn 18 March 2013, the Joint Standing Committee on Migration tabled its Inquiry into Migration and Multiculturalism in Australia report.

The report is a result of the committee’s inquiry into multiculturalism in Australia, which started on 9 February 2011. The AEC lodged a submission to the inquiry on 8 March 2012. The committee made 32 recommendations, none of which related directly to AEC activities.


4Administrative scrutinyThere is a range of avenues in which AEC administration can be scrutinised by external people or organisations.

Certain of the AEC’s administrative decisions, under the Electoral Act, are subject to merits review by the Administrative Appeals Tribunal, under the Administrative Appeals Tribunal Act 1975.

The Commonwealth Ombudsman, under the Ombudsman Act 1976, manages complaints about matters of administration relating to AEC functions.

Entities can lodge complaints about breaches of privacy rights with the Privacy Commissioner, at the Office of the Australian Information Commissioner, under the Privacy Act 1988. The Australian Information Commissioner and the Freedom of Information Commissioner deal with complaints and delays in the handling of requests for access to information under the Freedom of Information Act 1982.

The Australian Human Rights Commission, under the Human Rights and Equal Opportunity Commission Act 1986, manages complaints that claim the AEC may have unlawfully discriminated against a person.

Administrative Appeals TribunalThe Administrative Appeals Tribunal reviewed one matter, involving the AEC, during 2012–13.

The matter involved an AEC decision to change the Register of Political Parties to recognise Mr Stephen Rawson as the NSW State Secretary of the Democratic Labor Party (DLP). On 27 June 2012, the AEC wrote to Mr O’Donohue, the former secretary of the DLP, informing him that the AEC had changed the Register of Political Parties following an application from Mr Rawson to be the NSW State Secretary of the DLP. On 20 July 2012, Mr O’Donohue lodged an application with the Administrative Appeals Tribunal for review of the decision. On 21 January 2013, the Deputy President of the Tribunal finally dismissed the application from Mr O’Donohue (see O’Donohue and Australian Electoral Commission [2013] AATA 23).

Commonwealth OmbudsmanDuring 2012–13, the Commonwealth Ombudsman approached the AEC on two matters.

One was the time taken to process a claim for updating the address of a voter. The other was whether a person could nominate as a candidate prior to the issue of the writs for the election.

Both matters were finalised during the year and there were no findings of administrative deficiency recorded against the AEC.

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Office of the Australian Information CommissionerThere were no privacy complaints or determinations in 2012–13 through the Office of the Privacy Commissioner under section 52 of the Privacy Act 1988.

There were no matters involving the AEC subject to review by the Australian Information Commissioner or the Freedom of Information Commissioner under the Freedom of Information Act 1982.

Australian Human Rights CommissionThe AEC did not receive any complaints in 2012–13 through the Australian Human Rights Commission.

Judicial scrutinyA number of previously reported matters involving the recovery of legal costs continued in the relevant jurisdiction including the recovery of costs in three of the four Court of Disputed Returns matters that arose following the 2010 federal election.

As indicated in the 2011–12 annual report, the AEC has continued to be involved with legal action brought by Mr John Mulholland. Mr Mulholland has been involved in a long‑running dispute over who is the registered officer of the Democratic Labor Party of Australia (DLP) for the purposes of the conduct of federal elections. The registered officer of a political party recognised by the AEC has various rights and obligations under the Electoral Act, particularly in endorsing a party’s candidates in a federal election. Mr Mulholland had previously lodged an appeal to the Full Bench of the Federal Court of Australia from a decision of the Administrative Appeals Tribunal that found that substitution of Mr Anthony Zegenhagen, as the registered officer for the DLP was valid. The Full Bench of the Federal Court of Australia handed down its decision on 19 September 2012 (see Mulholland v Australian Electoral Commission [2012] FCAFC 136). The court dismissed the appeal by Mr Mulholland and awarded costs in favour of the AEC. Mr Mulholland lodged a special leave application with the High Court of Australia to appeal against the Federal Court decision. On 10 April 2013, Justices Hayne and Crennan of the High Court dismissed the special leave application.

There was a related challenge to the AEC’s decision to replace Mr Mulholland on the Register of Political Parties as the registered officer for the DLP. On 27 June 2012, the AEC wrote to Mr O’Donohue informing him that, notwithstanding his submissions, the AEC had changed the Register of Political Parties following an application from Mr Stephen Rawson to be the NSW State Secretary of the DLP. On 20 July 2012, Mr O’Donohue lodged an application with the Administrative Appeals Tribunal for review of this decision. On 21 January 2013, the Deputy President of the Tribunal finally dismissed the application from Mr O’Donohue (see O’Donohue and Australian Electoral Commission [2013] AATA 23).

Two challenges relating to convictions for failing to vote at the August 2010 federal election remained before the courts. The first matter involved a Mr Dieter Horn. Mr Horn has engaged in litigation since August 2006 claiming that the voting compartments provided by the AEC in polling booths be either fully enclosed or have curtains to


4maintain the secrecy of the ballot. Mr Horn has argued that the current voting screens are unlawful and breach the requirements of sections 206 and 331 of the Electoral Act. Mr Horn has a conviction in the Magistrates Court of Western Australia in 2008 for failing to vote in breach of the compulsory voting requirements contained in section 245 of the Electoral Act. Mr Horn appealed that decision to both the Supreme Court of WA and the WA Supreme Court of Appeal on the basis that his concerns about the voting screens amounted to a “valid and sufficient reason” for his failure to vote at the November 2007 election. Both Courts upheld the conviction and rejected Mr Horn’s arguments.

At the August 2010 federal election, the records show that Mr Horn again failed to attend a polling booth and to cast a vote. On 29 August 2012, the WA Magistrates Court convicted Mr Horn of failing to vote at the election without having a valid and sufficient reason for that failure. Mr Horn appealed against the conviction to the Supreme Court of WA. On 7 March 2013, Justice Hall dismissed the appeal from Mr Horn (see Horn v AEC [2013] WASC 72). In the final paragraph of the decision, His Honour stated that:

“A stubborn refusal to accept the lawful judgment of the courts cannot be excused on the grounds of fidelity to one’s values. Too much time and effort has been spent on an issue that has long ago been determined. It is well nigh time that Mr Horn accepted the judgment of those whose job is to judge”.

The second matter involved Mr Nils Anders Holmdahl. On 3 February 2012, the SA Magistrates Court convicted Mr Holmdahl of failing to vote at the August 2010 election. Mr Holmdahl appealed against the conviction to the Supreme Court of SA. The appeal was referred to the Full Court of the Supreme Court of SA which dismissed the appeal from Mr Holmdahl (see Holmdahl v AEC (No.2) [2012] SASCFC 110). Counsel for Mr Holmdahl argued that while the Constitution established a right to vote, the requirements of the Commonwealth Electoral Act 1918, which created the obligation to vote, were unconstitutional. The Court rejected this argument and held that:

“The Commonwealth electoral system, as described above, represents a system designed to support the election of the House of Representatives and of the Senate by the people of Australia. The Commonwealth Electoral Act has the purpose of ensuring representative democracy. The broad effect of the statute is to require all eligible persons to enrol as voters and then to require those voters to attend and vote. The terms of sections 245(1) and 245(15) establish a duty to vote and a failure to vote attracts a criminal sanction. It is difficult to understand how the obligation to enrol and the obligation on a voter to vote could detract from a representative democracy in which the people of Australia choose who is to represent them in the House of Representatives and in the Senate. To my mind, the Commonwealth Electoral Act is legislation enacted within power. It provides a relevant system in contemporary times to ensure that Australia is a representative democracy.”

Mr Holmdahl lodged a special leave application with the High Court of Australia to appeal against the decision of the Full Court of the Supreme Court of SA. On 12 April 2013, Justices Hayne and Crennan of the High Court dismissed the special leave application (see Holmdahl v AEC [2013] HCA Trans 072).

The AEC conducts elections in various industrial matters. The AEC is the ballot agent for protected action ballots conducted under the Fair Work Act 2009. The AEC also conducts elections for office bearers in industrial elections conducted under the Fair Work (Registered Organisations) Act 2009. These industrial elections can give rise to disputes

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between two parties (for example, between the industrial organisation and the employer or between various candidates standing for election to office bearer positions). In these matters, the AEC seeks to be joined as a party to the proceedings to enable it to assist the court in accordance with the principles established by the High Court in the case of R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

Under section 182 of the Fair Work (Registered Organisations) Act 2009, the AEC conducts elections for office bearers in industrial organisations unless the Fair Work Commission has granted an exemption (see section 183). Organisations are required to lodge the required details for an election with the Fair Work Commission (see section 189). When they provide that information, the General Manager of the Fair Work Commission passes it to the AEC. The AEC then proceeds to conduct the election. There are a number of offences in relation to the actions, which hinder or obstruct an election and the AEC would refer allegations of breaches to the General Manager of the Fair Work Commission or to the Australian Federal Police. If the allegation can be construed as an “irregularity” (see Mcjannett, in the matter of an application for an inquiry in relation to an election for offices in the Construction, Forestry, Mining and Energy Union, Western Australian Branch (No 2) [2009] FCA 1015) that has affected the outcome of the election, then under subsection 200(2) of the Registered Organisations Act, the AEC is required to make an application to the Federal Court for an Inquiry.

The AEC was involved with four matters before the Federal Court of Australia in 2012–13. All four matters involved the eligibility of candidates to stand for election for vacant office bearer positions with their respective industrial organisations. The reported decisions in these matters are:

■ Troy Gray, in the matter of an application for an inquiry relating to an election for an office in the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Electrical, Energy and Services Division (No 2) [2012] FCA 1387

■ Asmar, in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union (No 3) [2012] FCA 1289

■ Mcjannett v Bulloch [2012] FCA 1233 ■ Beswick, in the matter of an Election for an Office in the Shop, Distributive & Allied

Employees’ Association v Swetman [2013] FCA 642.

Freedom of InformationThe AEC is subject to the Freedom of Information Act 1982 (FOI Act) and required to publish information for the public as part of the Information Publication Scheme (IPS). This requirement, in Part II of the FOI Act, has replaced the former requirement to publish a section 8 statement in an annual report. The AEC publishes, and regularly updates, this information on its website in accordance with the IPS requirements.

Performance auditsThe Australian National Audit Office provides quarterly Audit Activity reports to the BAC. In 2012–13, there were no specific performance audits in relation to the AEC.


CASE STUDY

Delivering the franchise to the Torres StraitDelivering the franchise can be a ‘hot and sweaty’ job, particularly in the Torres Strait in September. That was certainly the experience for three AEC mobile polling teams, who spent two weeks island hopping to deliver the Torres Strait Regional Authority (TSRA) election.

A cluster of islands over 48 000 square kilometres…The Torres Strait is a waterway between far north Queensland and Papua New Guinea. Several clusters of islands lie in the Strait, collectively called the Torres Strait Islands. The islands are scattered over 48 000 square kilometres, from the tip of Cape York, north towards the borders of Papua New Guinea and Indonesia. It is the only part of Australia sharing a border with a neighbouring country. Papua New Guinea is 3.73 kilometres from the northern most point and Indonesia is only 3.5 kilometres from the northwestern edge.

The various Torres Strait Islander communities have a distinct culture and long‑standing history with the islands and nearby coastlines. Records of habitation go back 2 500 years. Recognition of Native Title in Australia first occurred for land in the Torres Strait.

Villages along the PNG southern coastline conduct traditional trade and cross border visits. The traditional people of Torres Strait are of Melanesian origin and speak two distinct languages. In the Eastern Islands, the traditional language is Meriam Mir, while the Western and Central Island groups speak either Kala Lagaw Ya or Kala Kawa Ya, which are dialects of the same language.

The TSRA is a Commonwealth authority, which has 20 elected representatives who are Torres Strait Islander and Aboriginal people living in the Torres Strait region. Torres Strait has 20 wards (electoral divisions).

Polling place for the 2012 TSRA elections,

Port Kennedy Hall, Thursday Island.

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September elections to fill twenty positionsThe AEC conducted the TSRA elections on 15 September 2012. The task was to fill 20 positions. At the time, there were no nominations received in the ward of Kubin, so there was another election for the ward held in December 2012.

Figuring out election logistics is the AEC’s mainstay, so conducting the TSRA Board elections, with some distinct logistics, is the type of challenge AEC staff are prepared for.

Managing in the hot, steamy climate was just one challenge. A bigger challenge was navigating the geography to reach all voters, especially the small number of voters in the outer islands. AEC staff, including Indigenous Electoral Participation Program staff, conducted community how‑to‑vote workshops. Radio advertising ran in Creole and English. As well as static polling places, voting options included pre‑polling, postal voting and mobile polling. The mobile polling teams travelled in small planes, by ferry and four wheel drive vehicles, election paraphernalia in tow, to deliver the franchise to the Torres Strait.

The teams’ efforts resulted in high voter turnout, particularly as voting in TSRA elections is not compulsory.

Poruma, or ‘Coconut’ Island

Documents

GOVERNANCE AND ACCOUNTABILITY · 2020-07-08 · Section 4: Governance and accountability Management committees 75 Executive Leadership Team The governance review formalised the role