This paper reviews recent allegations of electoral misconduct, especially in
the context of pre-selections in the Australian Labor Party (ALP) and the
Liberal Party, and evaluates the various responses and methods to counteract
such behaviour, including electoral and criminal offences, investigative
commissions and parliamentary inquiries. The related issue of the autonomy of
political parties is also analysed, with reference to case law and potential
reforms.
- The main types of electoral misconduct which have been the
subject of allegations in 2000 and 2001 are enrolling at a false address,
branch-stacking, paying for preferences, and standing 'dummy' candidates (pages
3-5).
- In August 2000 an ALP local government councillor was gaoled in
Queensland for forging and uttering electoral forms to influence pre-selection
plebiscites. Her allegations implicated other members of the Queensland ALP and
sparked the Beattie Labor Government and the Criminal Justice Commission to
take action (pages 5-7).
- The Shepherdson inquiry was established pursuant to the powers
of the Criminal Justice Commission and was granted responsibility to
investigate alleged official misconduct in certain plebiscites, by-elections
and local government elections in Queensland in the 1980s and 1990s. Public
hearings were held from October 2000 to January 2001. Witnesses at the inquiry
gave evidence of false enrolment schemes organised by the Australian Workers
Union faction of the ALP. Several current Members of Parliament, including the
Deputy Premier, made admissions of misconduct to the inquiry and resigned from
the ALP (pages 7-11).
- The Criminal Justice Commission, created by the Criminal
Justice Act 1989 (Qld), possesses broad powers but its investigative focus
is 'official misconduct in units of public administration'. If the Commission
finds evidence of a criminal offence, it can refer the matter to the
appropriate prosecuting authority. However, establishing a charge of misconduct
depends on the existence of an applicable disciplinary regime. At the time of
the Shepherdson inquiry, no code of conduct existed for Queensland
parliamentarians, although a proposed 'Code of Ethical Standards' has been
drafted (pages 11-13).
- The Legal, Constitutional and Administrative Review Committee
of the Queensland Legislative Assembly also investigated how to minimise
electoral fraud in State and local government elections in 2000. The Committee
tabled an interim report on 14 November 2000 but expressed reluctance to reach
conclusions until the Shepherdson inquiry had released its findings (pages
13-15).
- The Electoral Act 1992 (Qld) provides for offences
including giving false information, forgery, false witnessing, voting when not
entitled, bribery and interference. The Act applies to Legislative Assembly and
local government elections. Other elections are covered by electoral offences
contained in the Queensland Criminal Code (pages 15-17).
- At a Commonwealth level, numerous allegations of electoral
misconduct in Federal electorates were referred to the Australian Federal
Police for investigation in 2000 and 2001 (pages 18-20).
- The Joint Standing Committee on Electoral Matters was provided
with a reference to examine fraudulent enrolment on the Commonwealth roll and
the adequacy of the Commonwealth Electoral Act 1918 to prevent such
conduct. Hearings took place from November 2000 to February 2001 and several
witnesses from the Queensland electoral scandals gave evidence (pages 20-21).
- The electoral offences and penalties available under
Commonwealth legislation parallel those of Queensland. The Federal Liberal
Government proposed amendments to the Commonwealth Electoral Act in 1999
to increase the identification and witnessing requirements, but these have been
blocked in the Senate (pages 21-25).
- In New South Wales, similar options are available to those in
Queensland to counteract electoral misconduct. The Independent Commission
Against Corruption has jurisdiction to investigate corrupt conduct by - or
relating to - public officials. Unlike the Criminal Justice Commission Act
1989 (Qld), the ICAC Act 1988 (NSW) specifically mentions
electoral offences, but the Act imposes qualifications upon the concept of
'corruption' that complicate interpretation. Furthermore, allegedly corrupt
conduct by a Member of Parliament must involve a 'substantial breach' of the
Code of Conduct or bring Parliament into serious disrepute (pages 26-30).
- Electoral offences in New South Wales are provided in the
Parliamentary Electorates and Elections Act 1912 (NSW), and limited
criminal charges may be pursued under the Crimes Act 1900 (NSW) (pages
30-33).
- A comparison of party rules in New South Wales demonstrates the
varying standards that pertain to branch membership and selection ballots,
which are prime areas of corruption. The Labor Party has the strictest
residency requirements for branch membership, candidature, and eligibility to
vote in a pre-selection ballot. This may explain the relatively higher reported
incidence of false enrolments by members of the ALP than other parties (pages
33-36).
- Australian political parties were largely autonomous
organisations until the introduction of public funding and financial disclosure
legislation in the 1980s, such as the Election Funding Act 1981 in New
South Wales (pages 36-38).
- Traditionally, courts have been reluctant to find jurisdiction
to intervene in the internal affairs of a political party unless the party is
incorporated - a rare phenomenon in Australia (pages 38-40).
- However, in 1999, the Supreme Court of South Australia held
that a dispute between the State ALP branch and a party member over new members
who had not been admitted in accordance with party rules, was justiciable
because the party was registered under the electoral legislation and therefore
had a different status to a voluntary club: Clarke v Australian Labor
Party (1999) 74 SASR 109. The Court found that the memberships were not
valid and that the party's attempt to amend the membership rules with
retrospective effect contravened the party constitution (pages 40-41).
- The Clarke case has had a significant impact on
political parties throughout Australia. When grievances arise, members are more
likely to seek independent legal advice and party officials are more conscious
of demonstrating fairness and transparency in their reponse. It remains to be
seen whether 'external' regulation of political parties expands in the future
(pages 41-44).
- A variety of reforms have been suggested by politicians,
academics and other commentators to reduce electoral misconduct. Techniques
which may improve the resistance of the electoral roll to exploitation include
introducing proof of identity requirements, closing the roll early, comparing
voter information between selected government departments, and researching more
technologically advanced methods of voting. Potential electoral offenders may
also be deterred by increasing the penalties for offences, the time limits for
commencing prosecutions and the scope of parliamentary disqualification
provisions (pages 44-50).
- Political parties have reacted to the electoral scandals of
2000 and 2001 by reviewing their dispute-handling procedures, party rules, and
authenticity of membership. Unless parties develop a culture of ethical
behaviour, they face the prospect of greater scrutiny and intervention, such as
the supervision of party ballots by the Australian or State Electoral
Commissions (pages 50-54).
