This advice sets out the AEC's conclusion in relation to the matters described below:
Whether the Coastal Voice Community Group Incorporated (INC 9885522) (Coastal Voice) is an "associated entity" that operates "wholly, or to a significant extent, for the benefit of one or more registered political parties" and therefore has a reporting obligation to lodge "associated entity" annual returns with the AEC.
The AEC has received a request from an Opposition Senator in August 2010 to examine the status of Coastal Voice.
In a letter to the Electoral Commissioner dated 12 August 2010.
Part XX of the Commonwealth Electoral Act 1918 (the Act).
The AEC considered public information available from ASIC, Internet searches and media reports.
The AEC has reviewed the information in its possession together with the additional material that has now been provided to the AEC. The results of this review are that there is no information or available evidence to show that Coastal Voice meets any of the six grounds set out in the definition of an "associated entity" contained in subsection 287(1) of the Electoral Act.
The first issue is the exercise of the power contained in subsection 316(3A) of the Electoral Act. The power contained in subsection 316(3A) of the Electoral Act has several limitations. The authorised AEC officer must have:
Unless all of the above elements are satisfied, then the Electoral Act provides the AEC with no legal authority to issue the notices to any person or entity to ascertain whether an entity is an "associated entity".
The AEC has previous external legal advice on the scope of "reasonable grounds". The advice cites the High Court decision in George v Rockett (1990) 170 CLR 104 at 115 (not dealing with the Electoral Act but with the Queensland Criminal Code Act) that: "When a statute prescribes that there must be "reasonable grounds" for a state of mind – including suspicion and belief – it requires the existence of facts that are sufficient to induce the state of mind in a reasonable persons."
Accordingly, facts must exist which are sufficient to induce the state of mind in a reasonable AEC officer that a relevant person has documents or evidence relating to whether Coastal Voice is an "associated entity". And at page 116 the High Court went on to state that: "The objective circumstances sufficient to show a reason to believe something needs to point more clearly at the subject matter of the belief, but that is not to say that the objective circumstances establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief in an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture."
In slightly similar context to section 316 of the Electoral Act, the High Court commented on a similar power in the Trade Practices Act 1975 "…if…the Commission…has reason to believe that a person is capable of …producing documents". In the case of the Daniels Corporation International Pty Ltd v ACCC (2002) 77 ALJR 40 Justice Callinan described the "reason to believe" test for the ACCC to issue a notice requiring the production of evidence as being a "relatively low threshold".
Combining the above would appear to result in the "reasonable grounds" tests in subsection 316(3A) of the Electoral Act requiring (i) the existence of facts sufficient to induce the state of mind in a reasonable person and (ii) those facts may not necessarily be established at a high standard of proof.
At the present time the AEC is not aware of the existence of any documents or evidence that a person will be able to produce to the AEC that relates to whether Coastal Voice is an "associated entity". Indeed, the AEC is not aware of any prima facie evidence or other material that would indicate that Coastal Voice has at any time operated "wholly, or to a significant extent" for the benefit of any political party. This issue is further canvassed below.
The second legal issue under Part XX of the Electoral Act primarily relates to the definition of an "associated entity" contained in subsection 287(1) of the Electoral Act. Any investigation under subsection 316(3A) must be specifically linked to documents and evidence that relates to whether an "entity" operates as an "associated entity". This term is defined as:
"associated entity means:
In addition, the term "entity" is defined in subsection 287(1) of the Electoral Act as:
The AEC accepts that Coastal Voice as an unincorporated association registered under NSW law is therefore an "entity" within the above definition. However, it is then necessary to determine whether its activities fall within the definition of an "associated entity".
The AEC has carefully examined the material that has been provided, together with other information about Coastal Voice which is in the public domain. The AEC has been unable to identify any facts that show that Coastal Voice "operates wholly, or to a significant extent, for the benefit" of the ALP so as to come within paragraph (b) of the definition of an "associated entity" in subsection 287(1) of the Electoral Act. In the absence of the existence any such facts, the AEC is not legally able to meet the first requirement in subsection 316(3A) that there are any "reasonable grounds" to issue a notice to some person to provide unspecified documents or evidence to the AEC.
The media reports from the Sydney Morning Herald do not contain any facts or admissible evidence that could be considered by the AEC. This is particularly the case given the legal proceedings in the Supreme Court of NSW in the matter of Craig Thomson v Fairfax Media Publications Pty Ltd (Matter No. 2010/00056481) which the AEC understands to involve defamation proceedings in relation to the various media reports published by this company.
The document that provided entitled "Coastal Voice – Your Central Coast Community Group" contains no material or other information that would indicate that its aims and resultant activities are directly linked to benefit any political party. The fact that the then President of Coastal Voice in 2006 was Mr Craig Thomson does not change this position. The December 2006 newsletter that was also provided refers to a range of health and dental care issues being pursued by Coastal Voice and the then union campaign against WorkChoices. This publication does not show any direct linkage or support of the ALP by Coastal Voice.
In the absence of full and specific details of all of the activities undertaken by Coastal Voice in specific time periods, the AEC is unable to conclude that those activities which may reasonably be regarded as directly benefiting a particular political party comprise the whole or a significant proportion of all the activities undertaken by Coastal Voice and are of benefit to a particular political party. The AEC is of the view that the present information and available evidence is unlikely to be sufficient to enable a Court in a criminal prosecution to find that Coastal Voice is operating "wholly, or to a significant extent" for the benefit of the ALP. Accordingly, the AEC concludes that there is no information or available evidence to show that Coastal Voice meets any of the six grounds set out in paragraph (b) of the definition of an "associated entity" contained in subsection 287(1) of the Electoral Act.