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Senate Estimates: Finance and Public Administration Legislation Committee: (Australian Electoral Commission)

Estimates & Committees
Lee Rhiannon 4 Nov 2016

Tuesday, 18 October 2016

CHAIR: I welcome the Electoral Commissioner, Mr Tom Rogers, and officers from the Australian Electoral Commission. Mr Rogers, do you wish to make an opening statement?

Mr Rogers: No, thank you.

Senator RHIANNON: Thank you for waiting till this late hour. Is the AEC confident in the integrity of the latest round of CFMEU elections?

Senator McKENZIE: The conduct or the outcome? Sorry, Senator.

Mr Rogers: Senator, you might have to provide me with a little more detail so I can provide you with—

Senator RHIANNON: I understand that the AEC runs the CFMEU elections.

Mr Rogers: We run a whole range of elections. Last year we ran something like 1,600 either protected action ballots or fee-for-service elections. If we have run the election, I am very confident in the processes that we put in place to actually run the mechanics of the election. But, as you know, there are a whole range of issues around industrial elections that are not the purview of the AEC.

Senator RHIANNON: Minister Cash has claimed that the CFMEU had done a deal to hand senior leadership positions to Messrs Parker and Greenfield. Do you have any evidence that would point to a deal, considering you ran the election?

Senator Ryan: Sorry; I did not hear the question correctly.

Senator RHIANNON: I will start again. Minister Cash has claimed that the CFMEU had done—and I am quoting from Minister Cash—'a deal to hand senior leadership positions' to Messrs Parker and Greenfield. So my question is: does the AEC have any evidence that would point to a deal, considering you ran the election?

Mr Rogers: I have no evidence before me, and, if you are talking about an issue that may have occurred outside of the election itself but rather in terms of the preparation for an election, by a particular group within a union, I have no evidence before me of that.

Mr Pirani: If I might assist: the AEC is the valid agent for the election of certain office bearers for unions under the Fair Work (Registered Organisations) Act. Yes, we do conduct those elections where we have been nominated as the valid agent by the Fair Work Commission. In relation to the CFMEU, I am aware that there was an election over in Western Australia. The issue over there became the eligibility of particular candidates to be nominated. The Fair Work Commission recently issued some guidelines in relation to that, because under the Fair Work (Registered Organisations) Act there are certain persons who cannot be office bearers and eligible to stand for election. But, otherwise, if the AEC becomes aware of an irregularity in the conduct of one of those elections, we are required under section 190, I believe it is, of the Fair Work (Registered Organisations) Act to go to the Federal Court to seek orders in relation to that. But I am not aware of any specific irregularity that occurred in relation to an election that we have done under the Fair Work (Registered Organisations) Act. But we will take that on notice.

Mr Rogers: And, Senator, if you have any evidence you would like us to look at, I am more than prepared to look at that as well. Senator Ryan: To be fair, the commission have outlined their role in the electoral process for a registered organisation, and I think, to be fair to the quote from Senator Cash—I am not aware of the full context of the quote, but that quote that you read out, or you referred to, I do not think is necessarily limited only to the fairness of the electoral process. I think that also alludes to—

Senator RHIANNON: With all due respect, Minister, a deal to hand senior leadership positions to Messrs Parker and Greenfield is virtually negating that there has been a fair election.

Senator Ryan: No, it is not.

Senator RHIANNON: Anyway, given the lateness of the hour—

Senator Ryan: There can be a deal about tickets formed, support for, fundraising for, slush funds used for elections.

Senator RHIANNON: You obviously have not listened to the response from the AEC. But, given the lateness of the hour, I want to get onto some of the issues about the definitions. I want to go back to this issue: is there a distinction between 'donations' or 'gift' and 'other receipts' in the actual legislation?

Mr Pirani: Senator, we have been over this before. In the legislation the definition is in section 287 of the Commonwealth Electoral Act. The definition in the act is 'gift'. To assist people going through the returns that are put on our website, we have 'donations' and 'other services'. In the act itself the only definition is the definition of 'gift', and that is what is required to be disclosed in parts of the act. In relation to the annual returns for political parties et cetera, they have to disclose all money that they receive, all debts that they incur, all expenditure that is incurred as well. To assist people in going through those returns we have on the form something that says 'donations' and something that says 'other'. That is to try to assist them. For example, one of the things you quite often see in an election year is a payment of election funding by the AEC. So that it does not look like the Commonwealth is making a donation or the AEC is making a donation to the political party, that is always included as 'other' as opposed to being a donation.

Senator RHIANNON: My conclusion is that the parties, the people who fill in the returns, are not legally obliged to make the distinction on the disclosure form.

Mr Pirani: But most of the parties see it as in their interest to have that distinction on the return. There are things that are not regarded as a donation, but they still have to include them because it is money that they have received.

Senator RHIANNON: Are you aware that there are more moneys, which many would determine as donations, that are being put down as other receipts?

Mr Pirani: When these are issues—and we are aware that a couple have been raised with us—we will approach the relevant political party and seek their views, and normally we may come to an agreed conclusion that an amendment may be appropriate to have that published.

Mr Rogers: Senator, again, if you have some specific cases you would like us to look at we would be more than prepared to do that.

Senator RHIANNON: That is very good. But, given the lack of distinction, is it fair to say that we do not have transparency of donations, only transparency of payments, because the transparency of donations is not complete?

Mr Rogers: You are asking me to make a judgement call on that.

Senator Ryan: Mr Pirani outlined that all receipts are considered and within those all donations would be included. Regarding the construction you have put on that, I cannot think of a donation that is not included in the return, as Mr Pirani outlined it.

Senator RHIANNON: But some money received as a donation by political parties would be disclosed as 'other receipt' or even left blank. I think we have all seen some disclosure returns where it is just blank. It has the money but that part is not filled in.

Senator Ryan: It is disclosed as a gift, isn't it, Mr Pirani?

Mr Pirani: The classic example we have is when a person attends a dinner where members of a political party or government may be present. Quite often the person who attended might regard it as a donation while the recipient might regard it as 'other'. That is one of the areas where the act is not clear, and it has been a longstanding issue. Again, it is something we attempt to address in the various guidelines that we publish on our website. But it is an issue. It is one of the reasons it is impossible to accurately match a particular donation with a particular receipt because quite often there is not a meeting of minds between the person who is making the payment and the recipient of the payment.

Senator RHIANNON: Considering we are basically addressing transparency here and the public's right to know, is it fair to say that, if a member of the public goes to the AEC site and looks under the donation category, the figures that they see would be an underestimation, as some donations could have been listed as 'other receipts' or left blank? That is why I go back to my point that we do not have transparency of donations. It is not the full details. We have transparency of payments.

Senator Ryan: No, you have transparency of gifts as defined by the act, don't you?

Mr Pirani: That is correct.

Senator RHIANNON: No, because not all of them are defined. They do not have to call it a gift. They can call it another receipt.

Mr Pirani: Again, you are only talking about amounts that are above the disclosure threshold. If it is below that disclosure threshold, it will not be separately reported at all and will just be included in the total amount.

Senator RHIANNON: Yes, I am talking about $1,300. Mr Pirani: Part of the issue is: how much of the money that is received will be below the disclosure threshold? You will not see that anyway because it will not be separately reported. It will only be those larger amounts that are above the disclosure threshold that are required to be disclosed separately from the bulk amount that is actually received by the political party. It is an issue. It is in the act. All we can say is, 'It's there.'

Senator RHIANNON: Moving onto loans, if the AEC became aware, from viewing disclosure returns from a donor and the party that received the donation, of a discrepancy about loan arrangements, would that trigger further inquiries by the AEC? Mr Pirani: In a general sense, yes.

Mr Rogers: Again, I am very conscious that you are asking a question that is requiring some speculation. If you have a specific example, we would be happy to take that and look at the detail of it.

Senator RHIANNON: The disclosure returns lodged with the AEC show that Family First received a $1.47 million loan from Mr Bob Day and his companies. The Family First disclosure returns show only $1.19 million in outgoing payments on this loan. Is that the sort of discrepancy that you would investigate?

Mr Rogers: The specific matter that you refer to is active at the moment, and we have done some work in that space. I would expect that there will be an amended return published on our website fairly shortly for the issue that you raise there.

Senator RHIANNON: In terms of how you manage this, will you determine if the requirements under section 306A(3) of the Commonwealth Electoral Act with regard to loans to political parties that require terms and conditions of the loan—and requirements you set out in your own documents such as amount of loan, interest payable on the loan, repayment schedule and any special conditions attached to the loan—were documented and retained by Family First? Are you looking at that?

Mr Rogers: As I mentioned, that matter is active at the moment. I am loath to talk about an active matter, but we are working on that issue at the moment.

Senator RHIANNON: Do you also investigate if loans were provided at the market rate?

Mr Rogers: I am not sure that would play into our space. I cannot see that that would be part of our investigation. I might have to take on notice and think about that a little more.

Senator RHIANNON: The reason I was asking is that, if the loan was provided at a concessional rate, would the difference be counted as a gift in kind and disclosed appropriately? Wouldn't you have to assess that if that happened?

Mr Rogers: I think I would like to consider my answer to that one. I will take that on notice.

Senator RHIANNON: Thank you.

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