Estimates: Legal and Constitutional Affairs Legislation Committee (Australian Federal Police)

Senator RHIANNON: ... I understand that, with regard to the Electoral Act, if disclosures are not made properly and if there are inconsistencies the Australian Electoral Commission has to refer investigations of all possible potential offences, other than a failure to vote, to the AFP for investigation. My question is: in the last three years, how many breaches of the funding and disclosure requirements under the Electoral Act has the AEC referred to the AFP?

Mr Negus : I will go to the deputy commissioner on the figures that we have around the Electoral Commission. But I am not sure whether it actually covers the question that you are asking.

Mr Phelan : I think you asked in relation to matters around funding and disclosure.

Senator RHIANNON: Yes, please.

Mr Phelan : The information that I have is: none. However, I am happy to take that on notice. From a couple of the investigations that I have, it is unclear to me in the advice as to whether they are specifically related to funding and disclosure. I suspect the answer is none, but I am happy to take that on notice.

Senator RHIANNON: I want to ask you a couple more questions to clarify what I was after. How many investigations into breaches of the Commonwealth Electoral Act has the AFP undertaken in the last three years where the Australian Electoral Commission is the complainant? Of these, how many have the AFP referred to the Commonwealth Director of Public Prosecutions for consideration? How many prosecutions have been initiated as a result? I did not want it to be narrowed down to just disclosures. Could you provide details of whatever has been referred to you by the AEC, please.

Mr Phelan : I am happy to do that now if you want, Senator. I can go through a bit of the table of the information that I do have. That might help a little bit and narrow it down. Since the financial year 2010-11, the AFP has received 24 referrals from the Australian Electoral Commission. We have investigated 18 of those. We have rejected six of those, where either there were no offences disclosed or there was insufficient evidence. So far, from the advice that I have, no matters have been referred for prosecution.

Senator RHIANNON: So no matters to the—

Mr Phelan : No offenders have been charged.

Senator RHIANNON: No-one has been charged. Can we detail that out: 24 referrals and 18 investigated. What happened to the six that were not investigated?

Mr Phelan : They would have been rejected first off.

Senator RHIANNON: So they were the rejected ones?

Mr Phelan : They were the six rejected, yes. So it is just 24—18 accepted with a balance of six.

Senator RHIANNON: Can you tell us where the 18 are up to, please? And can you categorise what they cover in any way?

Mr Phelan : I can take that on notice, if you like, in relation to some of those matters.

Senator RHIANNON: If you could take on notice the 18, what they cover and where they are up to.

Mr Phelan : Yes, certainly, I can.

Senator RHIANNON: But, if I understood correctly, you have said none have been referred to the Commonwealth Director of Public Prosecutions?

Mr Phelan : That is right. It does not necessarily mean that all 18 of the 24 are still under active investigation. Most of those have probably been closed. At the moment I think we have less than half a dozen active investigations.

Senator RHIANNON: Just to explain the process to me: if they do not go to the Commonwealth Director of Public Prosecutions, what is the outcome? What happens?

Mr Phelan : We would advise the departments and advise the Australian Electoral Commission of the results of our investigation. Then it would be a matter for them. We normally just say, 'As far as the AFP is concerned no further action will be taken in relation to this manner.' Then it is referred back to the AEC.

Senator RHIANNON: In terms of what action that they should take, are you advising that the law was broken but that it should not go through to full prosecution? Can you get down to that detail, please?

Mr Phelan : I may be able to get down to that level of detail, but that would be—

Senator RHIANNON: Is this on the public record anywhere?

Mr Phelan : No, I doubt it. I would have to be very general in terms of the advice.

Mr Negus : Senator, could I perhaps give you a bit more scope of this. There are current active investigations in regard to possible electoral enrolment fraud. There are ongoing matters in regard to issuing false how-to-vote cards and also multiple voting. There are still ongoing matters in that regard. I should say, though, that this is an area where we have had significant difficulty in reaching the prosecution stage, because proving the exact time of an offence, given the lack of accurate records—as you know, when you turn up to vote you do not have to present any identification—proving the identity of the offender or whether the person knew what they were doing was wrong is a difficult thing. The AFP outlined these difficulties associated with investigating matters during a Senate committee on electoral fraud on 27 June 2011, so our concerns in regard to this area about the sorts of things we would like to see are on the public record, and we do work with the Electoral Commission quite closely in trying to work out the best ways to act as a deterrent in this space and to make sure that information is available to people working in this area.

Senator RHIANNON: Thank you for that information. You have identified the areas of enrolment fraud and fake how-to-vote cards. Are they some of the 18 cases that you have been looking at?

Mr Negus : They would be, yes, and multiple voting as well. These are active investigations that are ongoing, so I cannot talk about them, but we do have these matters on foot and they have not reached conclusions. Although no one has been charged yet—these matters may lead to that or they may not—we are still investigating them.

Senator RHIANNON: What about political funding, political donations and inconsistency in disclosure? Do you look at any of that?

Mr Negus : I think I will go back to what the deputy said in that we will have to take that on notice, because I do not have details of those types of things. We do not think that they have been referred, but we will check on notice.

CHAIR: Thank you, Senator Rhiannon.