en.
He also indicated that he had been under some pressure leading
into the opening of the
PPVO at Oaklands Park and may have been pre-occupied with
what he saw to be the inappropriate location of the PPVO in the foyer of
the Marion Council Chambers. He was agitated and unhappy with the inadequate size and location of
the
PPVO and
had serious concerns relating to the logistical and administrative difficulties
with
which he would have
to contend.
The OIC also indicated that his pre-occupation with setting up the PPVO had resulted in
him missing a portion of a face
to
face briefing (at which Election 2007 overheads were used) on
Friday 30 July, 2010, given by a member of
the
Kingston Divisional Office for the OICs of PPVOs in the divisions of
Hindmarsh, Kingston and Boothby. The Oaklands Park OIC had
excused himself from the briefing after about an hour and a half to return to Oaklands Park
and thereby missed the discussion on ordinary voting at a PPVO.
The OIC rejected any notion that he or
any
of his staff had
tampered with the ballot papers and
no
evidence was tendered that tampering had occurred.
Conclusion
The ballot boxes
containing ordinary ballot papers received at the Oaklands Park PPVO were opened in breach of Subsection 200DP(2) of the Electoral Act.
The OIC can give no clear explanation for his actions other than he was following similar
practices that he had
undertaken when operating a PPVO in
the 2007 election. He also cited
pressure arising from his concerns with the administration of the Oaklands Park PPVO which
he
considered to be badlylocated and caused ongoing difficulties
for him and
his
staff.
Although the opening of the ballot boxes was in
breach of the Electoral Act, the OIC
diligently recorded the breaking of the seals
and
opening of
the ballot boxes on
the Record of Ballot boxes and
security seals.
There was no attempt to cover up the daily practice of
opening the boxes and
no
evidence was tendered that the votes had
been tampered with. Other polling
officials interviewed from the
Oaklands Park PPVO confirmed the OIC version of events. The OIC expressed genuine remorse and regret that his failure to implement proper process had
resulted in the disenfranchisement of
those electors who cast pre-poll
ordinary votes at the
Oaklands
Park
PPVO.
Blackwater PPVO
The OIC of
the
Blackwater PPVO was an officer of the Queensland Department of
Justice
and the Attorney-General. The PPVO was located at the Blackwater Court House.
The OIC was an
experienced polling official having participated in 4 previous federal
elections, including the 2007 event.
Based on
the OIC’s statement and
the
OIC returns, there is no evidence that the ballot boxes
containing the ordinary ballot papers were improperly opened on any day prior to the close of
the
PPVO at 6.00pm on 20 August, 2010.
On Friday, 20 August, following the
close of
the PPVO, The OIC, in the absence
of any instructions dealing with the closing of
the PPVO on 20 August, proceeded on
the basis of
materials found in the materials
package forwarded to him by the Divisional Offic Flynn. The
package contained 4 items relating to the conduct of
a count.
1. A notice that read:
ATTENTION
OICS PHONE IN RESULTS ON
1300 750 306
Call1 – House of Reps
Call2 – TCP
Call 3 –Senate.
2. Result sheets for the House of Representative count.
3. Result sheets for the Senate count.
4. An envelope containing TCP
count details.
As the materials package was addressed to the OIC of
the PPVO, the OIC took the
notice to apply to him and
that he should conduct a count of ballot
papers that night
(20
August) and commenced to do so forthwith. He broke open the seals and opened the ballot boxes to gain access to
the
ballot papers. In doing so he unwittingly breached subsection 200DP(2) of the Electoral Act.
Regrettably, the notice, which had been prepared by the
DRO Flynn, should only have been sent
to Assistant Returning Officers at Counting
Centres within the Division. Instead the notice and results sheets had been included in
the
package of materials sent to all
OICs
including those at PPVOs.
Once the OIC had completed the count
at around 9.40pm, he rang the 1300 number mentioned in the notice above,
which put him in contact with the
Temporary Assistant at the
Flynn Divisional
Office. She transferred him to the DRO Flynn, who
immediately registered that the count was not something that should have been undertaken at the PPVO. She asked the OIC about the TCP count
and he advised that it had
not been done but
that he was just phoning in the first count as
instructed. While it had been
the intention of
the OIC to conduct
a TCP count he had noted the direction on
the
envelope that it should
not be opened before 6.00pm on polling night. That, along with the reaction of the DRO, made it
apparent that the TCP
should not be undertaken. The OIC did not proceed with the
TCP count.
The DRO stated that she did not take any figures from the OIC but directed him to place all the ballot papers in the ballot box,
seal the ballot box, make a note in
the
OIC return and
take the ballot box to the
Blackwater static polling place
where he was going to be the OIC on polling day.
At 9.50pm, the DRO phoned the
AEC Operations Manager
in Brisbane, to report the incident. The Operations Manager reported the incident to the Director Operations Queensland, at around 10.00pm and he confirmed that quarantining and
forwarding the
ballot box to the DRO
was
the appropriate course of action. The Operations Manager
confirmed the events which had
transpired to the Australian
Electoral Officer, Queensland,
and other members of the State Management Team early on Saturday morning 21
August. The Australian Electoral Officer (AEO), Queensland then notified the
Electoral Commissioner of the incident.
The ballot box
was
returned from Blackwater to
the Flynn Divisional Office on Sunday 22
August. The DRO indicated that
on inspection of the ballot box, which was semi transparent,
she saw that the declaration envelopes had also been placed
in the ballot box.
The following day, Monday 23 August, the DRO
broke the seals
and opened the ballot box to
withdraw the envelopes for declaration exchange purposes and then resealed the ballot box
which
was
witnessed by three Divisional staff. The
ballot box remained quarantined pending legal advice from the AEC National Office.
Following receipt of
legal advice, the Electoral Commissioner made a public statement on 31
August 2010 indicating that 452 early
votes cast for the Division
of Flynn had been
quarantined and would not be included
in the count.
Contributing factors
The OIC of
the
Blackwater PPVO conducted pre-poll voting
in strict compliance with the requirements of
the
Electoral Act.
It was not until after the close
of pre-poll voting at 6.00pm on
Friday 20 August that he undertook a count
of the ordinary ballot papers that had
been taken at the
PPVO. In doing so, he breached the provisions of the Electoral Act. The OIC
made it clear that he thought
he was following the instructions of
the DRO Flynn, in that he was given a notice requesting OICs to phone through results to the Divisional Office. The notice
made no mention of when the results were to be phoned through and
there was no distinction
made between the OICs of static polling places and PPVOs. The DRO Flynn acknowledged that the notice
should not
have been included in material sent to the OIC of a PPVO and that
the notice, along with the result sheets for the House of Representatives and Senate counts, could well have misled
the
OIC into believing he should undertake a count.
It is also unfortunate that an email sent at 3.34pm on Friday 20 August outlining the
protocols for the closing of
the
PPVOs that day was not seen by the OIC until the following
Monday. The email was sent by the Branch Manager of the Magistrates Courts Branch of
the
Queensland Department of
Justice and Attorney-General which contained advice
provided by
the AEC on what was expected of the
OICs
of PPVOs operating out of court houses across the state. This advice was in response to a query received by the Branch Manager.
The OIC stated that he was extremely busy in
the latter half
of Friday afternoon with a bus load of miners wanting to cast pre-poll votes and that,
as a
consequence, he did
not read
any
emails on Friday afternoon. Had
he
been able to see the
advice contained in
the
email,
the
OIC stated that the mishandling of
the
votes could have been avoided.
Conclusion
The evidence would indicate that the OIC did everything required of
him
in the operation of
the
PPVO at Blackwater.
The OIC was misled by the
notice that had been forwarded in
error by the Flynn
Divisional
Office to conduct
a count and
phone through the results to the Divisional Office. He did
not
see an email sent
on the Friday afternoon, 20 August, sent by his own department, which
contained advice from the
AEC setting
out
the steps to be taken in closing the PPVO that
night. Had
he
seen that advice
or
been given similar advice at an
earlier time, the count
of the ballot papers at the PPVO could have been avoided.
Emerald PPVO
The OIC of the PPVO at Emerald was an
officer employed by the Queensland Department of Justice and Attorney-General. His experience spanned
the
previous Federal election in
2007
as a
2IC and the State election as an OIC of
a PPVO in 2008. The 2010 election was his first experience as an OIC of
a Federal PPVO.
The PPVO was located in the Emerald Court House.
The OIC confirmed that he had
on a
number of
occasions opened the ballot box containing ordinary ballot papers to rearrange the papers and create more space. The Record of ballot
boxes and seals
shows that the ballot boxes containing ordinary votes were opened on 11,
13, and 19 August. The reason
given on each
instance was “opened to rearrange and
fit more votes in.”
The OIC said that he did
not
realise that the opening of the ballot boxes containing pre-poll ordinary ballot papers was in
breach of the Electoral Act.
He said that he was surprised that the ballot boxes
could not be opened from time to time because he had requested the
Flynn Divisional Office to send more security seals
in addition
to
those that he had received in the materials package prior to the opening of the PPVO.
The OIC stated that he had counted
some 30
seals in the package that he had
received from
the
DRO Flynn prior to the
opening of
the
PPVO and
had calculated that with three ballot boxes
being used, there would be a requirement for more seals
than had been provided.
His calculation assumed the opening of the ballot boxes from time
to
time to make more room for ballot papers. The Divisional Office responded by delivering another 25-30 seals,
which reinforced the view held by the OIC
that
the ballot boxes
could be opened as
circumstances required.
Following the conclusion of
voting at the PPVO on 20 August, the ballot box
containing House of Representatives and
Senate ballot papers was forwarded to the counting
centre at
the
Star of the Sea Parish Hall in
Gladstone.
On Monday 23 August at the counting
centre in
Gladstone, the
Emerald PPVO ballot box was opened by
the DRO Flynn in
the
presence of scrutineers.
On opening the ballot box,
the
DRO noticed that the third seal – the one securing the flap of
the
box – had not been recorded on
the
Record of ballot boxes and
security seals. The DRO
drew this to the attention of all present, including the scrutineers, and amended the Record by
including the number of
the
seal on the Record. This was witnessed by an ALP scrutineer who signed the Record.
On completion of the count, both the House of
Representatives and Senate ballot papers
were placed in the ballot box
and
kept securely at the Flynn
Divisional Office Store Room.
On 3 September 2010, the ALP candidate for
Flynn wrote to the DRO
Flynn, suggesting that
“pre-polling votes from the Emerald Booth may have been
mishandled (the seal number on
the
top of the box
had
not been recorded) giving rise
to
the potential of
someone being able to access the votes.” He also acknowledged that “this will not ultimately affect the outcome of
the
result in Flynn but requires further investigation as to whether in all the circumstances the votes should be excluded from the count.” The letter was delivered to the Divisional Office on that same day.
On receiving the letter, the DRO contacted the AEC State Office
and
faxed the Record of ballot boxes
and
security seals
form to the
Operations Manager. On her examination of the form,
the Operations Manager saw the notations on the Record that indicated that the ballot boxes
had
been improperly opened for the purposes of creating more room and asked the DRO Flynn whether she realised that the seals and boxes
had been opened as per the Record. The DRO responded by
saying that until then, she had not been aware of
the
opening of
the boxes as shown
on the Record form.
Shortly after being advised of
this
incident, the AEO Queensland informed the
Electoral Commissioner of
the apparent mishandling of
ordinary pre-poll votes at the Emerald PPVO and sought advice
on action to be taken.
On Monday 6 September, advice was received by the AEO that the 854 ordinary pre-poll
votes cast at the Emerald PPVO were to be excluded from the count
On Friday 10 September, the DRO
was
directed by the AEO, Queensland, to remove the results for the Emerald PPVO from the ELMS system. On
that same day, the Electoral
Commissioner released a statement indicating that
the ordinary votes cast at the Emerald PPVO had been excluded from the count and that this further incident would be included in the examination underway to establish the circumstances surrounding the mishandling of
some
votes in Flynn.
Contributing factors
Contributing factors in the mishandling of
the ballot papers were the lack of understanding on the part of the OIC as to
the way in which ballot boxes containing ordinary ballot papers should be
managed and the limited preparation he was given for his task. Training
material was not received in a timely way sufficient for the OIC to absorb the
important changes regarding the management of the ordinary ballot papers and
the ballot box security requirements. The material that was sent arrived at the
Emerald PPVO at 12.30pm on 10 August, the day before the PPVO opened and was of
a kind that did not clearly highlight the necessity to avoid opening the ballot
boxes containing ordinary ballot papers. The OIC did not have the benefit of
any face to face training with AEC staff and was not visited by AEC personnel
during the time the PPVO was in operation.
The fact that some 55-60 security seals
were forwarded by the Flynn Divisional Office to a PPVO operating only 3 ballot
boxes, compounded the misunderstanding under which the OIC was operating. If
proper procedures were being followed, a maximum of 9 seals would have been
required on the first day and 3 seals per operating day thereafter. It begs the
question as to why such a quantity of seals was sent to the PPVO by the
Divisional Office without inquiry as to why they were needed.
Conclusion
The OIC operated the PPVO at Emerald with insufficient understanding of the procedures
necessary to properly manage the ordinary ballot papers and ballot
boxes. This was
compounded by
the lack of any face to face contact with AEC staff and the limited time he had to study
the content of
the training material provided. The training material and procedural manuals did
not
highlight the new procedures in a way that would have alerted
the
OIC not to open the ballot boxes
containing ordinary votes.
The OIC’s misunderstanding regarding the
security and
management of ballot boxes containing pre-poll ordinary votes was further compounded by the issuing of
up to 60 security seals by the Flynn Divisional Office for a 3 ballot box
operation at the Emerald PPVO, reinforcing the
OIC’s view
that ballot boxes
could be opened as circumstances
required.
Recommended changes to
minimise future mistakes at a PPVO
Training material
There was a general view that the training materials were not received by the relevant staff of PPVOs in sufficient time for the significant amount of information and procedures to be absorbed
and
understood. There should
also be some attempt to précis the voluminous content of
the materials
and manuals issued
to
PPVO staff to highlight and give
prominence to the fundamental and
most
important elements that the OIC of a PPVO must absorb and get right. This would include an
emphasis on
the necessity to maintain the integrity of the ballot boxes and
that the provisions of the Electoral Act are always met.
It would also be useful to highlight the protocols to be followed by the OIC when closing the
PPVO
on the day immediately before Polling Day.
Recommendation 1.
That the training materials and working manuals for the OIC of
a PPVO
be
reviewed with a view to highlighting the necessity to ensure that all procedures and practices are consistent with
the requirements of the Electoral Act. In particular, the need to ensure the integrity of
the ballot papers and
ballot boxes should
be
given special prominence in training materials
and in working manuals used at a PPVO.
Sealing of Ballot Boxes
There appeared to be a view amongst some of
the PPVO staff and within some parts of the AEC, that the ballot boxes could be opened under certain circumstances, so long as this was witnessed by
other polling staff and in a secure location. This understanding may have evolved over time as a consequence of managing declaration votes at a PPVO, which were
the
only kind of votes cast
at a PPVO prior to the 2010 event.
Even
so,
the Electoral Act makes no provision for the opening of ballot boxes containing declaration votes at a PPVO. The DRO
can direct the OIC to forward declaration votes in
accordance with the Electoral Act. There is no authority within
the Electoral Act to open a ballot box
to
create more
space or to facilitate the reconciliation of
ballot papers.
This is an area of practice that should be revisited in the light of
the incidents that are the subject of
this
report. There needs to be a clear understanding that whatever procedures and
practices are employed by polling staff, the requirements of the Electoral Act must always take precedence over administrative convenience.
In this
regard there needs to be a very clear message on each ballot box used in a PPVO that
once sealed, the box is not to be opened on any
account, other than in accordance with the
Electoral Act.
Recommendation 2.
That a highly visible stick-on
label be attached to each ballot box used
in a
PPVO at the time it is first sealed (perhaps adjacent to each side seal), that makes clear that the ballot box is not, on any account, to be opened.
Record of ballot boxes and security seals.
The incidents in relation to Oaklands Park and
Emerald might well have been
minimised had
a Divisional office staff member read the Record of ballot boxes and
security seals form
during the operation of the PPVO. In both cases, the
OIC
diligently and accurately recorded
the
breaking of the seals and
the opening of
the ballot boxes on an ongoing basis.
Unfortunately, that Record is not read
or examined
by
anyone at a Divisional level until
well
after the close of
polling. It would
seem more appropriate and effective if the Record form
was
periodically
checked by a Divisional level staff member as the
polling proceeds. This could be done during visits
to
the PPVO in
urban locations or by
way
of faxing the Report
form
to the DRO on
a regular basis from country locations.
Recommendation 3.
That the Record of ballot boxes and
security seals
form be routinely
examined by Divisional staff
either when visiting a PPVO or by
means of a fax or scanned
copy in relation to PPVOs located in country regions. This practice should
be
included in the
operating manuals for DROs and
their staff.
Conclusion
On the basis of my inquiry, I am of the view that the OICs at the
Oaklands Park, and Emerald PPVOs both made honest mistakes and did not in any way deliberately seek to
disenfranchise those electors who cast early votes at their respective PPVOs. The OIC,
Blackwater, was misled by the mistaken delivery of counting instructions by the Flynn Divisional Office to the Blackwater PPVO. No evidence was tendered of any tampering with ballot papers at any of
the three PPVOs.
All three OICs
recognise the seriousness of the outcome and in particular, regret the disenfranchisement of the 4,283 voters who cast ordinary votes at their respective PPVOs.
In light of
these incidents, it would be prudent to again
emphasise to all polling officials the fundamental tenet that all administrative practices adopted by polling staff
and
Divisional staff in the conduct of an
election, must be in
strict compliance with the provisions of the Electoral Act. This will require a review of current practices and procedures to ensure they
are in compliance with the Electoral Act.
It will also require improvements in
the training of relevant staff of
the AEC and of
temporary polling officials employed during the course of
an election. Such training will need to highlight the primacy of
the
Electoral Act and the imperative to secure the integrity of all ballot boxes and ballot papers, along
with the need to ensure transparency of
all processes, throughout the electoral cycle.
I believe that if the recommendations contained in this report are implemented, the potential for a repeat of
these incidents will be minimised.
Bill Gray AM
22 September, 2010