Estimates: Electoral Commission (State Election)

Mr GARDNER: I have a question in relation to Budget Paper 4, Volume 2, page 49, under Highlights—and we might refer to this one a couple of times, potentially—regarding the conduct of the 2004 state election.

The Hon. J.R. RAU: It is 2014.

Mr GARDNER: The 2014 state election would be an even better idea. A number of constituents have come to members of the opposition since the election complaining that they received what I refer to as the ‘please explain’ letters—the notice of apparent failure to vote letters—from the Electoral Commission asking why they did not vote and identifying that they might be about to receive an expiation notice for not voting, although those constituents say they did. I note that the Speaker of the House of Assembly received such a letter, and he tweeted:

I'm innocent of this charge that I failed to vote on 15 March. I suppose everyone who voted at Kilkenny has got one.

I am willing to believe the Speaker, for the record. How many please explain letters went out after the 2014 election?

The Hon. J.R. RAU: I will let the Electoral Commissioner take that question.

Ms MOUSLEY: While I do not have the exact number, I believe it is in the vicinity of some 45,000 electors.

Mr GARDNER: So that is 45,000 please explain letters sent. You may not be able to answer this immediately, but can you tell me how many people were sent expiation notices, and how many people who received please explain letters were in fact found to have voted and therefore excused from expiation?

The Hon. J.R. RAU: Again, I will refer that to the Electoral Commissioner.

Ms MOUSLEY: We are still in the very early stages of that process. It was only on Tuesday of this week that we sent out the expiation notices to some, I think, 25,000-odd electors, but we can confirm those numbers for you.

Mr GARDNER: Can I bring to your attention one of those electors, Emeritus Professor David Lockett AM, who is a constituent of mine, who received the original please explain letter on 4 June. He wrote to the Electoral Commission on the same day and also submitted the necessary paperwork indicating his voting details. He received a response from the manager of the community awareness and research branch on 13 June identifying that there was an extensive investigation.

There had been a technical issue with certified roles for a few polling booths in some electoral districts, data was not transferred to the master database and the database was being corrected to ensure he would not be receiving any further notices. It went on to say, 'My apologies to you for the system problem which we will analyse extensively in order to implement improved quality control to prevent a recurrence of this problem.' This was fine, except that today Emeritus Professor David Lockett AM received an expiation notice, and we are wondering why.

Ms MOUSLEY: Obviously, it is an administrative error. I am aware of that actual instance, and I was aware of the response we had sent to Mr Lockett. It should have been removed from the database, so I will take measures to ensure that it is remedied straightaway.

Mr GARDNER: Thank you for that. While you are doing that, perhaps you can find out how many other people have been in this situation. I assume that, for example, the Speaker did not receive an expiation notice this morning. He tells me that he has not received one yet, and I hope that will be the case.

Ms MOUSLEY: If it is of any comfort, I also received a failure to vote letter.

Mr GARDNER: Did you sign that letter?

Ms MOUSLEY: I have not returned it, but I have remedied the situation by saying that, as Electoral Commissioner, I do not vote at elections.

Mr GARDNER: I am pleased that you are not going to receive a fine, but this is of significant concern to a number of people. For the record, while you are getting the data for us, we would be pleased to know how the numbers compare to the 2010 election and what the equivalent numbers were for each of those categories at the 2010 election. How is it possible that this technical issue happens, with 45,000 letters being sent, minister or commissioner?

The Hon. J.R. RAU: I will refer this to the commissioner.

Ms MOUSLEY: When we do the scanning of our rolls after each event, it is done by a contractor, and they scan each of the rolls from each of the polling places within the state. It appears that, when they were uploading the data to put them onto the database to collect those who had failed or appeared to have failed to vote, there were rolls from a couple of polling places that were not uploaded to the main database.

When we had the first couple of inquiries, we found that there was a repeating pattern in two different areas, so we investigated those issues. That is where we found that they had been marked off the rolls, but they were not then loaded onto the main database that recorded those who had Thursday, failed to vote and those who had voted. That is why we are now going to put extra steps in place for the next event to ensure that there is a reconciliation for each of those marked off each of the polling place rolls with the master data file.

Mr GARDNER: So, there were two polling places where this seems to have happened?

Ms MOUSLEY: I believe there were two suburbs where it was happening. There was one in the Croydon area, hence the Speaker getting a notice. We subsequently found out that there was another minor issue at Valley View.

Mr GARDNER: Turning to a different item, I refer to the same page, but the target is to conduct operational reviews. When will the commissioner's report on the 2014 state election be finalised and presented to the parliament and the public?

The Hon. J.R. RAU: Again, I will let the commissioner answer.

Ms MOUSLEY: We intend to commence the preparations of the election report in early 2015, so I would hope that by the middle of next year we will have our report into the conduct of the election completed.

Mr GARDNER: Sorry, did you just say the middle of next year?


Mr GARDNER: Turning to page 59 and the appropriation of $570,000 for the Electoral Districts Boundaries Commission, what is the time frame for the EDBC to get underway, hold hearings, produce a draft report and deliver a final report?

The Hon. J.R. RAU: Again, I think the commissioner would probably best take that, but I recall we changed it for the last election. Some of us have mixed views about whether or not that was an improvement. Now is probably not the time for that, but it is as it was last time.

Ms MOUSLEY: The response is that the Constitution Act requires the boundaries commission to commence proceedings within two years of the date of the preceding election, so we would be expecting to commence that sometime before March 2016.

Mr GARDNER: You have $570,000 identified in this year's budget for that, so presumably the legislative requirement is to begin before March 2016; I appreciate that. Presumably, there must be some thought that has been given to when things will get underway, when the judge will be appointed as the Chair and when hearings might begin. Perhaps I can rephrase the question, rather than getting the same answer: what work is expected to take place in this financial year?

Ms MOUSLEY: There will be no work at all undertaken in this financial year, unless of course the Chief Justice gets in touch with me then to appoint the senior puisne judge as chairman of the boundaries commission. We are not anticipating much work to be happening in the financial year because our main focus within the office is to conduct the council elections, which we are currently preparing for, and then do our election report for the state election on 15 March, and we follow that up with the election report for the council elections as well. My preference, as the Electoral Commissioner, one of the boundary commissioners, would be to defer a lot of that work until a bit later on, so I would not expect that anything would be happening in this financial year.

Mr GARDNER: What then is the purpose of the appropriation for $570,000?

Ms MOUSLEY: From an understanding that was given to us by Treasury in that year and it has not been rolled through into any future years and that is something we will be making adjustments for at the appropriate time.

Mr GARDNER: That is in this financial year 2014-15 that it has been identified. You are saying that that will then be rolled into the following year.

Ms MOUSLEY: That is correct.

Mr GARDNER: What is the expected total cost of the redistribution process over the period of what now sounds like three years?

Ms MOUSLEY: I would suggest it would be in a very similar amount to the amount that has been put in the budget for us, and a lot of it depends on whether we have access to the Federal Court for our hearings. There are a number of factors that are taken into account as to the final cost of the redistribution process.

Mr GARDNER: To be clear, the amount in the budget that is provided, or at least the papers that are provided for us, identifies only the $570,000 for the coming year, it does not identify any in the forward estimates, or perhaps you could point me to some. Would that be $570,000 per year?

Ms MOUSLEY: No, that would be in total and that would be spread out over the intervening years for the period of time that the boundaries commission will be sitting.

Mr GARDNER: So $570,000 is the total cost of the redistribution.

Ms MOUSLEY: That is correct.

Mr GARDNER: In undertaking that redistribution, you obviously must do so in accordance with the constitution, maintaining the numbers of electors and section 83.1, which is colloquially known as the 'fairness clause', which requires the redistribution endeavours to ensure the group which achieves more than 50 per cent of the vote at the election should theoretically be able to form government. Perhaps if I ask the question this way: is it your view that that is possible?

The Hon. J.R. RAU: I do not think that estimates is a vehicle for asking the Electoral Commissioner, or me for that matter, to speculate or commentate on the provision in the constitution that provides for that provision.

Mr GARDNER: Well, you are asking us for $570,000 in order to carry out this task. If it is an impossible task, then maybe we should be looking at it.

The Hon. J.R. RAU: Some time ago, I think it was in 1988 or whenever it was, there was an election where the then government of Mr Bannon was returned and there was a clamour for something called the 'fairness principle', which if my memory serves me correctly was something which was requested by and delivered at the request of the Liberal Party of the day. There was a referendum because the Liberal Party at the time considered it important that that fairness principle was to be so sacrosanct and so significant that they wanted it entrenched in the constitution.

So, we went through a thing called special manner and form-type activities—in other words, a referendum—which means that that particular piece of the Constitution Act, along with one or two others, is now entrenched. What that means is that it can only be removed by a referendum after there has been the passage through both houses of this parliament a bill seeking to achieve that, whereas the rest of the Constitution Act can be amended simply by means of an amendment running through both houses just like any other act of parliament can.

Since that time, that provision in the constitution has been the subject of interpretation at every electoral boundary commission that has been convened, which means one per electoral cycle since that time. There is quite a bit of jurisprudence sitting in those reports, where the boundaries commission, chaired by whoever the senior puisne judge of the day might have been, has gone in to print explaining exactly what that provision means and how it should be applied. That is the law. One may have different views about whether one agrees with the law, but it is pretty clear what it means. All you have to do is read the reports; they tell you what it means.

Mr GARDNER: Well, having read the report, I can tell you that the 2012 report identifies a different application to previous reports. It identifies that the relocation of 174,000 electors is material to preferring the end result, which would only relocate 88,000 electors, rather than putting the fairness clause, in its previous interpretation, in front of that subsidiary consideration. I understand the Electoral Commissioner on a number of occasions has spoken publicly; in fact, the report identifies the difficulties of applying the fairness clause to deliver the result that is sought by it.

Therefore, the question is: given that 53 per cent of the two-party preferred vote at the last election was for the Liberal Party and 47 for Labor, and a 2.9 per cent swing to the Labor Party would see, if it was uniform, 26 Labor seats with less than 50 per cent of the vote at the next election, is it the view of the commissioner that it is possible to conduct a redistribution under the current arrangements over the next three years, with this $570,000, that will deliver a fair result, as preferred by the constitution?

The Hon. J.R. RAU: The answer to that question is that in every instance the electoral boundaries commission, however constituted, has done its very best to make sure that a provision, which in my personal opinion is slightly odd, but nonetheless was not authored by me, or indeed anyone on the Labor side, but authored by the Liberal Party, is to be applied. I have said this on many occasions and I say it again: the notion of the two-party preferred vote is a mathematical construct. It does not exist in the real world. For instance, in the case of a seat where a person other than a member of the Labor Party or the Liberal Party is returned, it involves the artificial exercise of removing the winning candidate from the contest and counting through—I think the description is—on the fictional basis that the actual winner was not in the contest, and you then throw the seat between Labor or Liberal. It is—

Mr GARDNER: So the law does need to be changed, in your view?

The Hon. J.R. RAU: No; hang on, just let me explain.

Mr GARDNER: Because that is what it requires at the moment.

The Hon. J.R. RAU: Hang on—well, no, no, no. I am just saying to you that the idea that there is anything inherently and magically fair about the fairness test, which is in the constitution, involves you putting a hell of a lot of faith in what is a mathematical construct; it does not exist in the real world—the two-party preferred vote—

Mr GARDNER: Well, the constitution does not think it is possible. You do not think—

The CHAIR: The member for Morialta, could we just have the Deputy Premier finish his answer before you ask your next question?

The Hon. J.R. RAU: The two-party preferred vote does not exist in the real world—it does not exist in the real world—it is a construct. It was a construct thought of by the Liberal Party, put in the constitution and entrenched in the constitution at the behest of the Liberal Party.

Mr GARDNER: Under a Labor government, when I was 10 years old—

The CHAIR: Order!

The Hon. J.R. RAU: That is point number one. Point number two is that, had the Liberal Party, if you want to persist with this idea of a construct, won all of the Liberal seats at the last election, according to the artificial method by which one comes up with this construct, then the Liberal Party would have had two additional seats at the last election, being Frome and Fisher. So, the redistribution which occurred in 2012 would have delivered to the Liberal Party a working majority in the House of Assembly. The fact that the Liberal Party voters in those two seats preferred to have somebody other than the endorsed Liberal candidate win those seats is not the fault of the constitution and it is not the fault of the Labor Party.

The third point I would make is that the fact that the member for Flinders is so beloved in his electorate that he is virtually carried around in a sedan chair and showered with rose petals as he wanders around Port Lincoln and he receives in excess of 80 per cent of the two-party preferred vote, with that fiction again, and that the member for MacKillop, interestingly enough, is almost as beloved by the people of MacKillop, and that the opposition chooses nevertheless to spend money making sure that the member for MacKillop nudges the 90 per cent—

Mr GARDNER: Completely irrelevant.

The CHAIR: Order!

Mr GARDNER: It is supposition on matters on which you do not have any idea, let alone any responsibility for.

The CHAIR: Order! I am calling the members to my left to order and asking them to listen to the answer, and then they will have the opportunity to ask another question

The Hon. J.R. RAU: I am getting to the third point, if you persevere with this mathematical construct. The second point is that you cannot even win your own seats. The third point is that, if you campaign and spend a great deal of money in seats where (a) you could win them if you put a dead person as the candidate or (b) you will never win them no matter how good the candidate is, why do you whinge about the constitution and why do you whinge about the Labor Party when that sheer incompetence is entirely within your control? I do not know how much money was invested in trying to defeat the member for Croydon.


Mr GARDNER: I refer to Budget Paper 4, Volume 2, page 49, the conduct of the state election. What is the process for how complaints are handled during an election campaign?

The Hon. J.R. RAU: The complaints, as I understand it, go to the Electoral Commissioner, who does her best with her staff to manage those in the course of the election. I understand that a number of matters relevant to this have been the subject of a resolution in another place, which has established a committee, populated by people hostile to the government—

Mr GARDNER: Your people will not show up.

The CHAIR: Order!

The Hon. J.R. RAU: —designed to operate as some sort of kangaroo court looking into this matter. The government has responsibly attempted to make this a mature conversation.

The CHAIR: We draw the Attorney's attention to not reflecting on the other place.

The Hon. J.R. RAU: Okay, I will not. The government has tried to put forward a sensible alternative to this, which was to have a joint house committee, with representations from both government, opposition and crossbenchers.

Mr GARDNER: I do not think this is relevant to the question of how complaints are handled during a campaign.

The CHAIR: Order, member for Morialta! I would like to hear the answer to the question and then you are able to continue.

The Hon. J.R. RAU: That committee will be an excellent forum in which all of these matters can be ventilated.

Mr GARDNER: Given that there is, in fact, a budget for running an election campaign and we are here at estimates to go through these lines, perhaps I could ask the question in a different way: does the commissioner obtain legal advice from any source outside of her own office during the course of the election campaign?

The Hon. J.R. RAU: The advice is received from crown law.

Mr GARDNER: Is there somebody from the Crown Solicitor's Office seconded to the office—

The Hon. J.R. RAU: No.

Mr GARDNER: —or does she send an email or give them a phone call?

The Hon. J.R. RAU: There is communication, I assume, with the Crown Solicitor or someone nominated—the Deputy Crown Solicitor.

Mr GARDNER: On 12 March, the commissioner wrote an email to an elector in which she admitted that conduct by a polling booth officer-in-charge at a Glenelg polling booth was inappropriate. The conduct in question took place the previous day and involved the ECSA officer loudly telling an elector in front of 40 other electors that that elector needed to vote either Labor or Liberal, and that Labor supported the underprivileged and that the Liberal Party looks after the rich. In responding to the complaint received from one of the witnesses, the commissioner wrote—

The Hon. J.R. RAU: It is hard to disagree with it so far.

Mr GARDNER: —and I quote:

…the lapse in judgement cannot be justified and as a consequence, Mr Abbot has been reprimanded and counselled about his actions. I have instructed his [returning officer] to visit the centre regularly and monitor his performance.

On 14 March, the State Director of the Liberal Party asked that this response be reviewed on the basis of how this person could possibly continue in that role. What review was undertaken and how serious does a breach of a polling booth official's duties have to be before they are removed from their position?

The Hon. J.R. RAU: The Electoral Commissioner does not have any specific recall of the matter, but it sounds, if accurately reported, to be a breach and she will follow it up. Although, I have to say, if the quoted words were actually used, they do appear to have a ring of truth about them.

The CHAIR: Are there any further questions, member for Morialta?

Mr GARDNER: Yes. The Deputy Premier can take these on notice if he wants. Given that the Electoral Commissioner will find, when she checks her email, that she identified that the person in office had been reprimanded and counselled—and I look forward to finding out whether there was a further review—can we have an identification of what form the reprimand and counselling took, who did the reprimanding, who did the counselling and what report was given to the commissioner by the returning officer as a result of having visited the centre regularly, we are told, to monitor the officer's performance?

The Hon. J.R. RAU: We will take that on notice.

Ms CHAPMAN: I have one last question, if I may.

The CHAIR: One last question from the deputy leader.

Ms CHAPMAN: During the election campaign there was a complaint about the former member for Hartley sending materials seeking donations and volunteer support to a public servant at their work address. The Electoral Commissioner identified that it was a matter for the Caretaker Reference Group. The Chief Executive, Jim Hallion, responded that it was inappropriate for a public servant to provide a workplace address to receive party political material and that the CRG 'considers it to be a minor breach of the public sector code of ethics by the public servant'.

On this basis is it the government's position that during an election campaign a minister can write and provide electoral material, fundraising material and volunteer encouragement material to public servants at their workplaces and, if anyone is to be censored, will it be the public servant and not the MP?

The Hon. J.R. RAU: I suspect that is properly a matter to be directed towards the Premier, because the person concerned is the chief executive of the Premier's department. That said, I will take it on notice and, if there is anything usefully I can add, I will.