Judicial decisions

Industrial elections

In an inquiry relating to an Election for an Office in the Australian Education Union (SA Branch) [2018] FCA 2074, Justice White voided the election for the casual vacancy (branch executive officer) pursuant to section 206(4)(a) of the Fair Work (Registered Organisations) Act 2009.

The Court found that the Roll of voters provided to the AEC to conduct the ballot included the names of people who weren’t eligible to take part in the election. As the election results (declared by the returning officer) included ballot papers from those who were not eligible, the judge voided the election and issued procedural orders for a fresh election.

Unfair dismissal

The matter of John Nemcic v Australian Electoral Commission [2018] FWC 5645 arose from an AEC investigation into alleged breaches of the Australian Public Service Code of Conduct by Mr John Nemcic. The Fair Work Commission found that the AEC's actions in dismissing Mr Nemcic did not amount to ‘harsh, unjust or unreasonable’ under section 387 of the Fair Work Act 2009. While the Commission commented on some of the AEC’s investigating procedures, it concluded that Mr Nemcic had not been denied procedural fairness. The Commission also held that an employee's dishonesty in responding to allegations was a breach of the employee's duty of honesty and fidelity, and could in itself be a valid reason for termination.

Perth by-election rejection of candidate nomination

On 16 July 2018 the Federal Court dismissed an urgent application from Mr Mubarak seeking to challenge a decision to reject his candidate's nomination for the Perth by-election on 28 July 2018. The candidate’s nomination was rejected because he didn’t secure the mandatory 100 electors to endorse his nomination. This is required under section 166 of the Electoral Act. In reaching his decision, Justice Barker held that substantial compliance with the 100 nominator requirement was not enough. The case is reported as Mubarak v Australian Electoral Commission [2018] FCA 1089.

The 2019 federal election

On 2 April 2019 in the lead up to the 18 May federal election, Mr Clive Palmer and three other United Australia Party candidates issued proceedings in the High Court of Australia challenging the AEC's practice of publishing information about the ‘two-candidate preferred’ count on election night for seats on the eastern seaboard, before polls closed elsewhere in Australia. This was despite the specific authority to undertake the count under subsections 274(2A) to (2C) of the Commonwealth Electoral Act 1918 (Electoral Act). The High Court made a unanimous decision to dismiss the application on 7 May. This result allowed the AEC to publish progressive election results on election night.

Administrative Appeals Tribunal decisions

In the AEC’s 2017–18 Annual Report, it was mentioned that a matter before the Administrative Appeals Tribunal (AAT) had not yet been set down for hearing: Watson v Australian Electoral Commission and Anor – AAT 2017/3419.

On 19 June 2017 the AAT notified the AEC of an application under the Electoral Act, to register the logo of the Australia First Party (NSW) Incorporated. This logo includes a representation of the Eureka flag. Objections to the logo registration were based on its reputed creation as a symbol of defiance.

On 20 December 2018 a Full Bench of the AAT handed down the decision in Watson and Australian Electoral Commission [2018] AATA 4914. The AAT dismissed the objection from Ms Watson finding that the Eureka flag is used widely and in many cultural contexts, and that its use in this logo was substantially different to the logo of the applicant. The AAT also held that the image of the Eureka flag used in this logo was not the logo of any other person.

Australian Information Commissioner decisions

The Australian Information Commissioner received three reports of privacy breaches during the reporting period. Two related to emails that contained the addresses of all recipients. One related to the inadvertent disclosure of some candidate contact details on the AEC website for a brief period on 25 April 2019. The AEC has acted to reinforce privacy awareness.

Australian Human Rights Commission

There were no complaints lodged with the Australian Human Rights Commission alleging criminal record discrimination under the Australian Human Rights Commission Act 1986.

In May 2018 the AEC was notified of an allegation of disability discrimination related to an employee redundancy offer. This complaint was the subject of conciliation and was resolved in September 2018.

The AEC has received notification of two other complaints of disability discrimination that are yet to be finalised.

Auditor-General Reports

There were no Auditor-General reports during the reporting period.

Parliamentary committees

The AEC works closely with the Joint Standing Committee on Electoral Matters (JSCEM) and the Department of Finance (DoF) to promote opportunities and risks in the electoral environment, and the need to modernise key election management systems.

In 2018–19 the AEC:

• provided information and advice on electoral management and the delivery of electoral services to two parliamentary committees for four inquiries
• made seven submissions and attended two public hearings
• attended three Senate Estimates hearings and responded to 33 Senate Estimates Questions on Notice

Commonwealth Ombudsman investigations

There were no investigations undertaken by the Ombudsman into the AEC’s administration during the reporting period.

Freedom of information

Under the Freedom of Information Act 1982, the AEC’s Freedom of Information Disclosure Log and Information Publication Scheme can be accessed at www.aec.gov.au/information-access.

Customer scrutiny

The AEC’s service charter—available at www.aec.gov.au—outlines the agency’s role and purpose and the services the public can expect to receive.

Public engagement policies, procedures and tools are also available for staff. The AEC routinely examines enquiry trends to improve public information and services.