2017-11-07
On Tuesday, 24 October 2017, Lee asked the following questions of Mr Tom Rogers, Electoral Commissioner, and Mr Paul Pirani, Chief Legal Officer, of the Australian Electoral Commission, as part of Senate Estimates hearings by the Finance and Public Administration Legislation Committee.
CHAIR: I might go to Senator Rhiannon, and then I'll come back to you. Is it on a related matter?
Senator McALLISTER: It's not a related matter.
CHAIR: I think, to be fair to share the call around between parties, we'll go to Senator Rhiannon and then I'll come to you, Senator McAllister.
Senator McALLISTER: I think Senator Farrell has had about 10 minutes. We did spend a very long time with Senator Abetz.
CHAIR: Yes. I think Senator Rhiannon would object to being grouped with Senator Abetz. The Greens have had zero time this evening.
Senator McKENZIE: They might both be talking about GetUp!
Senator McALLISTER: Certainly, and opposition senators have just had, I think, about 10 minutes. I have a series of quick questions. It would take us through about 20 to 25 minutes, and then I would be very happy.
CHAIR: No. I would prefer to start with Senator Rhiannon. If they're quick then I don't think it will matter either way.
Senator McALLISTER: It does actually matter, Chair.
CHAIR: On what basis?
Senator McALLISTER: It matters because this is an important opposition forum. We've dedicated an extensive amount of time to a government senator who had a particular issue he wished to pursue. He's perfectly entitled to do that, but how many minutes do you believe Senator Farrell has utilised?
CHAIR: I can tell you exactly: he used 11 minutes, because I have been recording it. If you'd like I'll go through the last several hours of evidence and we can calculate the proportion of time that Labor senators have had. I guess it would be close to 80 per cent, if not 90 per cent.
Senator McALLISTER: There have been few other senators in the room for that period. This is an important agency. I have some questions to ask. It shouldn't take long.
CHAIR: And I'll make sure you have sufficient time to do so. Senator Rhiannon.
Senator RHIANNON: We've talked a bit about 2005 and, mainly, about 2010—there were the two reviews then. What has changed since 2010? Is it purely that someone at JSCEM asked you to investigate? Is that all that has changed?
Mr Rogers: Mr Pirani may correct me. There are two issues. One is that we were asked to look at this matter at the joint standing committee. The other is that we review the activities of potential associated entities on an annual basis in any case. We review what's in the public domain to determine what those entities may or may not be doing. Mr Pirani, you might have a view on that.
Mr Pirani: I think the other thing that changed here was the fact that there was an election in the financial year that we're referring to. The activities in relation to that election were fairly prominent.
Senator RHIANNON: So what changed was what GetUp! did in the 2016 election?
Mr Pirani: That was a part of it. It was a desk audit of all the activities of GetUp! in that particular financial year going on what was in the public domain, on their website and other materials. Added to that was some of the activities that occurred during the election, yes.
Mr Rogers: Again, we're starting to stray into facts of the current activity, which I'm trying to avoid.
Senator RHIANNON: You're trying to avoid talking about what they actually did?
Mr Rogers: I'm trying to avoid about talking about the specific process that is currently underway.
Senator RHIANNON: Okay. We'll leave the process alone. I would understand that there are legitimate questions for you to explain what it is that GetUp! did. We know it's not just the JSCEM request. We know it's something that happened in the 2016 election.
Mr Pirani: Senator, I didn't say it was just the 2016 election.
Senator RHIANNON: No.
Mr Pirani: I was saying that was one of the factors that we have looked at in relation to this.
Senator RHIANNON: Okay. Can you explain what other factors you looked at? We know it's JSCEM request, 2016 election. Can you explain what aspects of the 2016 election and what additional factors—
Mr Pirani: Senator, we looked at the total activities in accordance with the test in paragraph (b) of the definition for 'associated entity'. That was what the prima facie audit and the desk audit undertook.
Mr Rogers: Again, Senator, I'm not trying to be unhelpful; I'm trying to protect a process. We have made no decision or determination about the current process that's underway. So, it's very difficult for us to answer those questions and it's potentially dangerous for us to answer those questions because that process is still underway.
Senator RHIANNON: I'll try and come at it in a different way to try and understand what's going on. Both of you have spoken about activities—the investigation. I know that you're not calling it an investigation, Mr Rogers, but I think it was the original word that was used at JSCEM, so I will use it. So there was an investigation based on activities of the organisation in 2015-16, and we know that 2016 is the election year. Did the AEC review the Minerals Council of Australia's activities following the campaign against the mining tax and Kevin Rudd when he was Prime Minister in 2010?
Mr Rogers: I'd have to take that on notice. I'm happy to do that. You're talking about 2010, did you say?
Senator RHIANNON: Yes. These are pretty hot topics. You knew what you were coming to tonight. There are a number of staff here. Surely, what went on with that must be in the memory of somebody.
Mr Pirani: We looked at the Minerals Council of Australia in relation to the particular campaign that they ran. I believe I also raised concerns with them about their first advertising campaign that failed to include the authorisation details required under section 328 of the Electoral Act. They amended that campaign. But, again, it seemed to be a single-issue campaign that was being run and was not directly aligned with a particular political party in their overall activities. Again, we're talking about the test in the act, which is whether they operated for the benefit of a political party, and it's looked at over a financial year.
Mr Rogers: Senator, before you go on, I take issue with something you said before. You were talking about a matter in 2010. We're now in 2017. I've mentioned before that there were 184 associated entities last year. We do something like 30-odd compliance reviews a year. There are a number of political parties. There have been two elections since that point in time. That we don't immediately have to hand something that occurred in 2010 I am not sure is a reasonable assertion for you to make about us.
Senator RHIANNON: Okay, thank you. Mr Pirani, with regard to the Minerals Council and in terms of how that was interpreted, you came to the conclusion that it wasn't to the advantage of a political party.
Mr Pirani: No, Senator, that is not what I said. I said that we looked at the activities of the council in total over the financial year to make the necessary determination. In the particular campaign that they ran, it was a single-issue campaign that was run at the time and, accordingly, that wouldn't have met the test of operating wholly or to a significant extent. You can't ignore the word 'wholly' in relation to the activities.
Senator RHIANNON: I'm not trying to make you angry. I'm just trying to understand it. The single issue—the issue of a benefit to a political party comes into it, because that's when you know when you get to a point of deciding if something is an associated entity here.
Mr Pirani: Senator, you're taking part of the test and extrapolating that and conflating it to be the whole test, and it's not.
Senator RHIANNON: No, I'm trying to work through a series of questions if you want to be fair to me. That's all right. That's not what you are here for, so we'll forget about it.
Senator Ryan: Senator Rhiannon, to be fair to the officials, as the commissioner said: this is seven years ago, and more than three elections ago. So Mr Pirani, with his extensive memory, is doing exceptionally well, unless notice was provided to him of events before the 2010 election.
Senator RHIANNON: Let's come forward now—if that's too difficult—to the—
Senator McKENZIE: Senator Rhiannon, I don't think—
Senator RHIANNON: Okay, it's late at night. I withdraw it.
Senator McKENZIE: You got the call and I don't think that's a fair representation of Mr Pirani's evidence.
Senator RHIANNON: I take your point. I shouldn't have done it. It's late at night. That's not even an excuse, so I apologise. So, we'll come forward to GetUp! in the current situation that's being looked at—your current process. With regard to activities that are undertaken, I understand from the way you have read out the definition that an association can be there possibly for the benefit of more than one political party. That's correct, under the act?
Mr Pirani: That's correct. We have several associated entities that currently lodge returns that say that they've acted for the benefit of more than one political party. They're currently on our website.
Mr Rogers: Which, as you know, is allowed under the act.
Senator RHIANNON: Yes. What about if those political parties have different policies and might even campaign against each other? Do you have examples of that?
Mr Pirani: Not in the context of associated entities.
Senator RHIANNON: The reason I'm asking is that in this case GetUp! is supposed to be associated with Labor and the Greens. Now, Labor and the Greens are often in tight competition, tight opposition to each other. That's why I'm just asking: has that happened with some of your examples where an associated entity is benefitting two political parties? It starts to sound extremely logical.
Mr Pirani: I'm not aware that that situation has arisen.
Senator RHIANNON: I suppose what's worth bringing in at this point is the issue that's come up many times when the AEC has had to deal with associated entities—the whole subjective factor. That's been written about considerably, hasn't it?
Mr Rogers: We've raised that previously. It's a difficult—
Senator RHIANNON: Would you like to comment more on that? Surely that's relevant when you're trying to make a judgement.
Mr Rogers: Let me start and then Mr Pirani—I'll see where we end up. The issue of associated entities is a difficult issue. We've raised it previously with joint standing committees and indeed this committee previously. The definition of an associated entity is a difficult definition. The test is a hard test and a high bar to achieve. I don't think that's a secret. We've made that public previously. We've made recommendations previously, and I am now talking about recommendations that we've made previously, not recommendations that we are making currently about associated entities. And it is a difficult issue. However, without dragging this out, I come to estimates and pretty much every estimates one party or another will raise an issue about a different party or associated entity or something we have or haven't done. What we do is apply the Electoral Act as it's written and as it was intended. We don't step outside that act and our role is to be independent and neutral and to apply the tests as we see them to be applied, and there's a process that we go through. With the situation that you're talking about at the moment, all we are doing is going through a process. We've made no declaration and no decision. It's just a process that we're going through. There's nothing out of the ordinary here. All we are doing is exercising the powers that exist in the Electoral Act, as we're required to do.
Senator RHIANNON: Can I just ask why you don't want to use the word 'investigation'? That is what was used initially at JSCEM. Is it to try to depoliticise it?
Mr Rogers: It's because it's not an investigation.
Senator RHIANNON: But a process is an investigation, because you gather information along the way. So, it's a bit semantic, isn't it?
Senator Ryan: Well, it could be an inquiry; it could be an assessment.
Senator RHIANNON: Precisely. But investigation—anyway, I'm running out of time, so I'll go to my next question. When was the last time the AEC investigated an organisation as to whether it was an associated entity where that entity had no direct or financial relationship with the relevant political party?
Mr Rogers: I'd have to take that on notice.
Senator RHIANNON: Is it that the campaigning that GetUp! is undertaking is in marginal seats part of what's prompted the AEC's investigation?
Mr Rogers: Again, I've made it very clear that I don't want to talk about particulars of that—I forget what we just said we were calling it—the process, the assessment we're going through.
Senator RHIANNON: Well, to try to understand your process—and to be fair to all of us, I suppose, because this comes down to so much subjective judgement—regarding the associated entities, there's one bit of the essence of the act there that links it to the benefit of political parties. But when you start to look into some of the cases, it looks as though the benefit to the political parties comes about from an interpretation that they're campaigning against the opponent of the political party they're supposed to be benefitting.
Mr Rogers: Senator, I am not sure about that, but I understand what you're getting to. That second test, wholly or to a significant extent, as we said before, has a subjective element contained in that that requires a judgement call. Now, I certainly wouldn't categorise that process as simply looking at the fact that it's campaigning against another organisation; it's more complex than that. That would probably inform part of that judgement, but it's not the total part of that judgement.
Mr Pirani: If you have a look at the material on our website that was part of the 2010 review, it does refer to benefit and detriment in relation to how the test could be applied. It is actually there on our website, under special inquiries, I think.
Senator RHIANNON: Related to the GetUp! case?
Mr Pirani: It was there and it's there on the 2010 one. My recollection is it's still on our website.
Senator RHIANNON: That's when you found that they weren't an associated entity?
Mr Pirani: When we looked at all the material in relation to their activities in that financial year that was the conclusion. It's there on our website.
Senator RHIANNON: In essence, you're trying to see if something has changed since then.
Senator Ryan: Please don't put words—
Senator RHIANNON: I'm not trying to put words in your mouth—
Senator Ryan: You're summarising what the officials are saying. The officials are actually using very carefully crafted words. I think either we can hang off their words or you can seek clarification rather than insert words.
CHAIR: Senator Rhiannon, I'm keen to give the call back to Senator McAllister. How many more questions do you have?
Senator RHIANNON: I'll come back if you want to go to Senator McAllister.
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CHAIR: Very briefly because I want to come to Senator Rhiannon in the remaining minutes.
Mr Rogers: That is the last printed version of that pocketbook.
CHAIR: I didn't realise. Sorry.
Senator SMITH: So it will be easier to correct in the future?
Mr Rogers: In the future, it will be online—
Senator SMITH: So this is the one to collect?
Mr Rogers: That is correct. It is a collector's item.
Senator RHIANNON: Mr Rogers, have you received a substantive response from GetUp! with regard to the process that you have undertaken? And have you considered it?
Mr Rogers: No determination has been made. But, again, I'm not commenting on the individual case at hand. I have made that very clear. I'm not being difficult. I'm following due process, and I won't comment on something that's underway.
Senator RHIANNON: So you won't even tell us if you have received a response from GetUp!?
Mr Rogers: Again, I have made it very clear: I am not commenting on—
Senator Ryan: I haven't found it hard to get a comment from GetUp! publicly over the last 48 hours. You could probably ask them if they've sent one in?
Senator RHIANNON: No, the key question here is: has it been considered?
Senator Ryan: The commission have said that they are considering assessing. They did not want to use the investigation for a whole range of matters, without referring to this specific one. If you've got a question on whether GetUp! have answered, with all due respect, you could ask them whether they have sent something in. They haven't been shy of making public comment in the last 48 hours.
Senator RHIANNON: Is reference to the Australian Federal Police one of the options that comes into your process?
Mr Rogers: Again, you're talking about the specific process. I understand there is a generic component there, but I'm loathe to comment further on this specific instance.
Senator RHIANNON: Okay. When do you expect to conclude the process?
Mr Rogers: As swiftly as we can. I cannot give you an estimate of that. There are a number of other things—
Senator RHIANNON: Will you publicly release your decision?
Mr Rogers: I will consider whether or not we publicly release our decision. I've made a similar comment earlier this year about some other matters. I'll consider it as part of the process.
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