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Estimates: Finance and Public Administration Legislation Committee: Finance Portfolio: Australian Electoral Commission

Estimates & Committees
Lee Rhiannon 21 Mar 2018

Tuesday, February 27

Political donations, associated entities and the AEC

Senator RHIANNON: There's been some confusion, from what I can see, about the AEC's interpretation of the words 'wholly or to a significant extent'. I was just referring to some of the work around the Minerals Council of Australia. I will go through these figures. In 2009 the MCA did not submit a political expenditure return. In 2010 they did, declaring over $17 million in political expenditure. In 2011 they submitted a return declaring $4 million. In 2012 they declared under $800,000 in political expenditure. In 2013, an election year, they declared $1.8 million. Presumably the significant increase in 2010 was related to this campaign—

Senator Cormann: Against the mining tax.

Senator RHIANNON: thank you—which was widely reported in the media at the time as having cost approximately $20 million. Did the level of expenditure on this campaign, as compared to the level of expenditure that would be more usual for the Minerals Council, factor into your determination that the Minerals Council 'wouldn't have met the test of operating wholly or to a significant extent'?

Mr Rogers: As you know, that particular phrase has been the subject of a number of discussions at the Joint Standing Committee on Electoral Matters. Let me go to the issue of the Minerals Council. The information I have in front of me is they lodged a third-party return in 2015-16 with a total expenditure of about $789,000. They lodged a 2015-16 donor return with total donations of about $33,250. We also then, as you know, Senator, write to a range of agencies and ask them, based on the criteria that we provide, whether they feel that they had a disclosure obligation in a particular year. Unless we have reasonable grounds to suspect that they may be doing otherwise, we take on face value the information they provide us. So at this stage we're not taking any further action in respect of the Minerals Council. I can't see anything in what you've said tonight that would cause me to do so, but I will get Mr Pirani to look at that as well.

Senator RHIANNON: Can you comment on this too, Mr Pirani: would it be fair to say that it's your interpretation that a campaign which expends roughly 10 times your normal annual political expenditure doesn't constitute 'wholly or to a significant extent'?

Mr Rogers: Before Mr Pirani does comment, a lot of that would be contextual depending on what the organisation is doing in addition to what might be in the public domain in that year. They might well be using that money for a range of different things. I'm not talking about this specific case but I'm making a comment—

Senator RHIANNON: I said 10 times your normal annual political expenditure.

Senator Cormann: Context is everything, as the commissioner quite rightly points out. I think that we all remember that in 2010 the previous, Labor government, with the support of the Greens, was trying to impose a disastrous tax grab on an important industry for Australia. It's not surprising that the Minerals Council, as the representative body for the mining industry, in that context took certain actions. And it sounds to me as if the information that you are reporting is public information. CHAIR: There have also been a few rounds of estimates since 2010—

Senator RHIANNON: We're actually asking for a definition here that's very relevant to what's going on today.

Senator Cormann: 2010 is not really relevant for what is going on in 2017-18. Under the legislation that is currently being considered by parliament, political expenditure in 2010 would not be relevant, whether it's GetUp or whether it's the Minerals Council.

Mr Rogers: I'd have to say that it's beyond the three-year window in which the current act would allow us to do anything or seek any information, in any case. But Mr Pirani may wish to comment.

Mr Pirani: The whole quote of the relevant provision that you're referring to is an 'entity that operates wholly or to a significant extent for the benefit of one or more registered political parties'. Given that the Mineral Council, in my recollection, ran a single-issue campaign—

Senator Cormann: For their constituency.

Mr Pirani: therefore, it is not going to meet the end part of the test for the benefit of one or more registered political parties—and that's the issue when you're running a single-issue campaign. The fact that they might have had a 10-fold increase in 2010, being election year, is not something that would necessarily be relevant to determining whether or not they're an associated entity. The fact that they lodged returns as a third party that incurs electoral expenditure under 314AEB does not turn them into an associated entity that has to lodge a return under 314AEA.

Senator RHIANNON: What's your threshold—even roughly or a ballpark?

Mr Pirani: It isn't a ballpark threshold. Every case has to be considered on its merits, based on the particular circumstances and facts that exist.

Senator RHIANNON: That's good you've clarified that. If there's no threshold, how do you make your determination? Are we getting down to 'it's just the vibe', because, really, you're being vague?

Mr Pirani: The test here is acting 'wholly or to a significant extent for the benefit of one or more registered political parties'. You've got to look at the test as a whole. You can't just take out components of it and think that that is going to meet the whole of the statutory test.

Mr Rogers: I might just step in there as well. As you know, in the joint standing committee, where we've discussed this, there's a degree of ambiguity about this particular phrase. The point I'd fall back on is: it is not just a monetary value; it's a contextual issue with each individual case and we treat each case differently depending on the circumstances. It's a highly complex area. I'm happy to provide you information about that out of session, but it is a complex thing and it's difficult for us sitting here to then talk about a particular incident from 2010 without having some additional information. But it's not necessarily related to the monetary value.

Senator Cormann: Importantly, the Electoral Commission, headed by the Electoral Commissioner, exercises its judgements entirely independently and in a non-partisan fashion, so it's of course appropriate for the Electoral Commission, acting independently, to make these judgements on a case-by-case basis, consistent with the laws that have been determined by the parliament.

Senator RHIANNON: Thank you, Mr Rogers. When you were looking at the Minerals Council's 2010 campaign—you've said each case has to be treated differently—did you go to them to request additional information?

Mr Rogers: I would have to take that on notice. I'm not being rude here at all, but 2010 is a long time ago. We're dealing with a range of other organisations and I don't have the records in front of me.

Senator RHIANNON: Can we ask Mr Pirani? He's got a good memory and this is such a big case. I would imagine somebody here remembers.

Mr Pirani: I thought we'd answered this on notice. I seem to recall—

Senator Cormann: This is essentially four prime ministers ago.

Senator RHIANNON: Well, that doesn't mean much in Australia does it. Senator Cormann: It does—it's eight years, essentially.

Mr Pirani: Question on notice No. 45 from the 2017-18 supplementary estimates says: 'The Australian Electoral Commission did not consider the disclosure status of the Mineral Council of Australia in 2010.' That tells me that we didn't believe there was prima facie information to meet the reasonable grounds test for us to be satisfied that a single-issue campaign by the Minerals Council turned them into an associated entity of a political party.

Senator RHIANNON: So you didn't seek additional information?

Mr Pirani: The answer to this is: no, we didn't.

Senator Cormann: It's self-evident.

Senator RHIANNON: Excuse me, Minister. The question—

Senator Cormann: You're badgering the witness here. It's self-evident that an organisation whose core business is to advocate on behalf of the mining industry, when they take action to advocate on behalf of the mining industry, are acting for the benefit of their constituent members, not for the benefit of one or more political parties, whereas there are other organisations where it is very clear that they do act in whole or in part for the benefit of a political party.

Senator RHIANNON: Has the AEC ever investigated whether the Institute of Public Affairs could be classed as an associated entity of any political party?

Mr Rogers: I'd have to take that on notice.

Mr Pirani: Senator, I refer you to question on notice No. 44 from the 2017-18 supplementary estimates, which states: 'The AEC has not considered the disclosure status of the Institute of Public Affairs.'

Senator RHIANNON: Thank you. What about the Business Council of Australia? Could it be classed as an associated entity?

Mr Pirani: Again, I would have to take that on notice to have a look at our records.

Senator RHIANNON: Thank you. What about the Queensland Resources Council?

Mr Pirani: Not that I'm aware of, but I'll take that on notice as well.

Senator RHIANNON: Thank you. When Clubs Australia were running their campaign against national pokie machine reforms, did you look at—your words, 'look at'—their activities to determine whether or not they might be classed as an associated entity?

Mr Rogers: Would that not fall into the category that Mr Pirani just discussed, about a single-issue organisation?

Mr Pirani: And I'm not clear what political party we are suggesting they would have been acting for the benefit of.

Senator RHIANNON: I wasn't suggesting that. I was just—

Senator Cormann: That was the question.

Senator RHIANNON: I am just asking the question—

Senator Cormann: But the implication of your question is that they did act wholly or in part for the benefit of a political party.

Senator RHIANNON: But I'm not the one answering the questions. You know that, Minister. The AEC is currently investigating whether or not GetUp! could be classed as an associated entity. You said previously, at hearings before JSCEM, that the investigation will be finalised in a matter of weeks, not months. Can you give us an update on the time line, please?

Mr Rogers: I would use the same answers I used with Senator Watt in talking about One Nation. That matter is active at the moment, and we are hoping to bring that to conclusion as soon as we possibly can.

Senator RHIANNON: As soon as you possibly can—weeks?

Mr Rogers: As soon as we possibly can.

Senator RHIANNON: What will be the process once the investigation is finalised?

Mr Rogers: That depends on the outcomes of the investigation.

Senator RHIANNON: Will you release your determination on your website, as with previous investigations of GetUp!?

Mr Rogers: We will determine how that plays out once the investigation is completed.

Senator RHIANNON: What are the other ways that you can release the information if it is not on your website?

Mr Rogers: We will determine that once we've completed the investigation.

Senator RHIANNON: This is the third such investigation of GetUp!. Has any other organisation undergone three investigations?

Mr Rogers: I'd have to take that on notice.

Senator RHIANNON: Mr Pirani?

Mr Pirani: I cannot recall one.

Mr Rogers: But, to be accurate, we'll take that on notice. If I might just say, I think as we've been on the public record, this is not an own-motion thing from the AEC; this was a request from the joint standing committee. I want to be very clear on that, because the nature of your question makes it seem as if we're being capricious. We are doing that in response to a question from the Joint Standing Committee on Electoral Matters.

Senator RHIANNON: But I thought that you had said previously it was a request from certain members of JSCEM.

Mr Rogers: Okay. It's a request from certain members of the joint standing committee—

Senator RHIANNON: Right. It's different.

Mr Rogers: that happened in committee. So this is not a capricious act by the AEC.

Senator RHIANNON: Yes, but it's not from JSCEM as a full committee. What instigated your investigation of GetUp!? Was it due to a referral? Well, we know what's indicated. Did it relate to any specific campaign activity or was it just because of what happened with the request from some JSCEM members?

Mr Rogers: If I understand your question correctly, the activities surrounding our examination of GetUp! this time around came because of that request from, to use your language, members of the joint standing committee. I'm just trying to remember now the way that was phrased to us, but I think it was based on the activities of GetUp! at the 2016 election—which caused that question to be asked of us—that we have then launched that investigation.

Senator Cormann: GetUp!, themselves, put on the public record that they handed out more than a million how-to-vote cards at about 500 polling booths. GetUp! themselves put on the public record that they spent, from memory, more than $10 million of political expenditure, and we know, of course, that they were set up by leading members of the Labor Party and Greens sympathisers.

Senator McALLISTER: This is a ridiculous—

Senator RHIANNON: Can I finish my questions off, Chair?


Senator RHIANNON: In a letter to GetUp! that was obtained by the ACT the AEC states that there were grounds—

Senator Cormann: Senator McAllister, are you suggesting that Bill Shorten wasn't a founding member of GetUp!?

Senator FARRELL: She was just stating the facts, Minister.

CHAIR: Given the tight time, this is probably not going to assist us to get through.

Senator Cormann: I'm pretty sure that not even Bill Shorten disputes that he was a founding member of GetUp!.

Senator RHIANNON: In a letter to GetUp! obtained by the ABC the AEC states:

… there were grounds to suggest GetUp's activities—

in 2016—

could be seen as having benefited Labor and the Greens.

Did the AEC send a comparable letter to the Minerals Council in 2010? If not, why not?

Mr Rogers: I think I've made the comments I'm making about GetUp!. I've mentioned that this is under active investigation at the moment and to make any further comment about that could compromise the investigation. I'm not prepared to make any further comment on it.

Senator RHIANNON: Thank you, Chair.

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