The Shepherdson Inquiry: An Investigation into Electoral Fraud, April 2001

Events that gave rise to the Shepherdson Inquiry

This Inquiry was triggered when a member of the Queensland Branch of the Australian Labor Party (ALP), Karen Lynn Ehrmann, alleged publicly that widespread electoral fraud in internal Party ballots was being carried out in Queensland by Party members.

At the time of making this claim, Ehrmann had just pleaded guilty to 47 charges relating to the forgery and uttering of electoral enrolment forms. At her sentencing in the Townsville District Court, in August 2000, she described herself as merely a 'bit player' in a 'well-known scheme' carried out by the Australian Workers Union faction within the ALP to commit electoral fraud in Queensland.

Ehrmann's conviction followed those of fellow Party members Andrew James Kehoe and Shane John Foster for similar conduct. The activities of these three people were regarded as very serious because they involved tampering with the Australian Electoral Roll — a public document on which the community is entitled to rely because it is vital to our system of democracy.

Their activities also gave cause for concern that more than just the conduct of internal Party plebiscites or preselections was at stake; the integrity of public elections was at risk.

The Criminal Justice Commission (CJC) immediately began investigating the matter. Acting on the advice of Mr P D McMurdo, QC, the CJC considered its preliminary investigation had uncovered sufficient grounds for disquiet to justify the launch of a full independent inquiry. On 5 September 2000, the CJC engaged me to conduct the investigation. From 3 October 2000 to 19 January 2001, public hearings were conducted relating to the terms of reference summarised below.

The Inquiry's terms of reference

The Inquiry set out to investigate any alleged official misconduct affecting the electoral roll relevant to the conduct of the:

• 1996 ALP plebiscite for the state seat of Townsville

• 1996 by-election for the state seat of Mundingburra

• 1993 ALP plebiscite for the ward of East Brisbane

• 1993 ALP plebiscite for the ward of Morningside

• 1986 ALP plebiscite for the state seat of South Brisbane.

(With the exception of the Mundingburra by-election, all of these were preselections to determine candidates for public elections.) The 1986 plebiscite for the state seat of South Brisbane was a term of reference added after the Inquiry began hearings and after receipt of further information.

In addition, the Inquiry sought evidence of electoral fraud in the conduct of any ALP plebiscite (state or local government) within the years 1993 to 1997 inclusive, and examined specific information received by the CJC implicating the then Deputy Premier, James Peter Elder.

Role of the CJC

The CJC has the responsibility of investigating matters that may involve official misconduct by anyone who holds office in a unit of public administration in Queensland. State politicians and local government councillors are such office holders. The CJC also has responsibility for investigating any action that may be intended to influence public sector officials improperly.

What the Inquiry could and could not do

The purpose of this Inquiry was not to determine guilt. Rather, it was to gather information regarding the allegations made that fell within the terms of reference. It then had to decide whether any of this information contained admissible evidence — that is, evidence that should be referred by the CJC to a prosecuting authority for consideration of charges against any particular people. The rule of thumb used in making this decision was whether the evidence could result in a conviction. In other words, if there was no possibility of a conviction, then no recommendation was made.

Owing to time limitations for prosecution of offences committed under the relevant legislation, only a few matters could be considered for prosecution. (See also page 172.)

Because the CJ Act does not give the CJC jurisdiction to investigate electoral fraud generally, the terms of reference did not call for the making of formal recommendations for electoral reform. However, chapter 10 makes several suggestions for remedying perceived weaknesses in the Australian electoral system and in ALP internal procedures exposed by the Inquiry.

Why did most of the evidence relate to the ALP?

One of the rules governing eligibility for voting in an ALP preselection is that the voter must be enrolled on the electoral roll for the electorate in which the preselection is being conducted. The conduct of Ehrmann, Foster and Kehoe had shown that by falsifying electoral enrolment forms in order to bolster the chances of specific candidates for preselection, the integrity of the electoral roll was compromised and electoral officials had been deceived into altering the roll.

Such internal rules do not apply to the other political parties. However, some of the evidence in relation to the Mundingburra by-election (a public election as opposed to an internal Party election) did point to the possibility of a false electoral enrolment by one Liberal Party supporter (see page 92).

Types of allegations

The allegations examined during the course of this Inquiry related to two main categories of false enrolment:

1 forgery: where people, without their consent or knowledge, were enrolled at a particular address in an electorate where they did not live to enable a vote in their names to be made at a plebiscite in that electorate

2 consensual false enrolment: where people participated in being falsely enrolled for that purpose with full knowledge and consent.

The first category is more serious and also the more difficult to prove. However, if discovered it is not subject to any time limitation for prosecution.

The second category is less serious and often easier to establish. However, the time limitations for prosecution of this offence (and the fact that it usually takes considerable time for the conduct to be revealed) mean that prosecution action may no longer be possible. The perpetrators are rarely caught, which, in turn, encourages the behaviour to continue. It was this sort of activity that was found during the Inquiry to be far more extensive than identifiable forgery.

Other allegations

As well as the allegations examined by the public hearing, many more were made directly to the CJC. On investigation many of these were fund to be without foundation or were clearly out of time for any prosecution action or did not fall within the jurisdiction of the CJC to investigate in that:

• they did not relate to state politicians or local government councillors, or
• they related to federal elections or plebiscites, or
• they related to purely internal ALP processes that did not have any connection with the electoral roll.

Matters that were outside the CJC's jurisdiction, that were not subject to any time limitation and related to federal matters were forwarded to the Australian Electoral Commission and the Australian Federal Police.

Some allegations that were out of time to prosecute were forwarded to the Australian Electoral Commission and the Electoral Commission Queensland to assist those bodies in the detection and prevention of official misconduct including criminal offences.

What the inquiry revealed in general

The information gathered during the Inquiry clearly established that the practice of making consensual false enrolments to bolster the chances of specific candidates in preselections was regarded by some Party members as a legitimate campaign tactic. No evidence, however, was revealed indicating that the tactic had been generally used to influence the outcome of public elections. Where it was found to have been used in public elections, the practice appeared to be opportunistic or related to the family circumstances of particular candidates rather than systemic or widespread.

Nor was there any evidence found confirming Ehrmann's allegation that the ALP had a 'mole' inside the Australian Electoral Commission who helped Party members produce false proof of electoral address. (See page 37.)

The Inquiry uncovered evidence of forgery, but there was great difficulty in obtaining evidence to establish who was responsible.

Specific allegations

The 1996 Townsville plebiscite (see chapter 3)

During the public hearings, Andrew Kehoe, already convicted of forging enrolment applications for the 1996 Townsville plebiscite, implicated Anthony Mooney (one of the candidates in the Townsville plebiscite) by saying that Mooney had encouraged him to make the false and fraudulent enrolments.

Despite inconsistencies in Kehoe's testimony, his evidence implicating Mooney is sufficient for the CJC to refer the matter to the Commonwealth Director of Public Prosecutions to consider whether to bring forgery charges against Mooney.

Insufficient evidence was found to warrant recommending that the Commonwealth Director of Public Prosecutions consider a charge against any other person (Kehoe, Ehrmann and Foster had already been dealt with).

The 1996 Mundingburra by-election (see chapter 4)

The allegations made by Erhmann concerning this by-election involved the possibility of false enrolments by members of the ALP for the purpose of a public election rather than an internal Party preselection. However, CJC investigations, with the help of the Electoral Commission Queensland, revealed no evidence to suggest widespread use of fraudulent enrolments. This is consistent with the overwhelming evidence that almost all false enrolments were for the purposes of internal Party olitics and not for the purposes of local government or parliamentary elections.

Importantly, the Inquiry found no evidence of 'cemetery voting' — i.e. the tactic of voting using the names of dead people.

In relation to the few cases of possible false enrolments, the time limitation for prosecution has expired.

The 1993 East Brisbane plebiscite (see chapter 5)

The two candidates for the 1993 preselection for the ward of East Brisbane were Robyn Twell and Kerry Rea. When Twell won, Rea lodged a dispute with the ALP Disputes Tribunal, but her appeal was dismissed.

At the Inquiry, Rea said that in 1993 she had been told that members of the AWU faction had been involved in electoral fraud by boosting their numbers for the plebiscite.

Twell said her campaign had been directed by Lee Bermingham, with Warwick Powell also involved.

The then Assistant State Secretary of the ALP, Lindesay Jones, told the Inquiry that at the time he expressed concern to the then Secretary of the ALP, Michael Kaiser, that the plebiscite list for East Brisbane looked 'very dodgy'.

At an in-camera hearing and later in the public hearing, Bermingham admitted that he had been involved in falsely enrolling members for the plebiscite and implicated a number of other people including Kaiser. He did not implicate Twell.

Powell also admitted that he was involved in arranging false enrolments for the 1993 plebiscite. He said he spoke to a number of people who then either moved physically to, or falsely enrolled in, the East Brisbane ward.

Kaiser denied involvement in any such activity.

According to evidence given by Jones, he and Kaiser (who were in opposing factions) discussed names on a plebiscite list to which Jones had objected and they agreed that about 21 names be removed from that list. Kaiser said in evidence that he and Jones did agree to remove a large number of names all of whom would have voted for Twell.

While the evidence before the Inquiry suggested that consensual false enrolments were indeed made by various people involved in this plebiscite, the expiration of the time limitation for prosecuting offenders means that these matters cannot now be referred to the Commonwealth Director of Public Prosecutions.

Three enrolments indicated the possibility of forgery. However, there is insufficient evidence to establish whether forgery actually occurred or who was responsible.

Allegations that threats were made by Powell and Bermingham to force young Party members to assist them in electoral skulduggery were too general to be the basis of any criminal charges. However, evidence was given that Bermingham and Powell may have used their positions either in the public service or the ALP to offer incentives of employment to young Party members. Some young Party members spoke of these perceived incentives being offered in return for involvement in false enrolments. Both Powell and Bermingham denied having offered incentives.

The 1993 Morningside plebiscite (see chapter 6)

After the CJC reviewed a document that appeared to cast suspicion on the conduct of the Morningside plebiscite, evidence was given by the candidates, Sharon Humphreys and Linda Holliday. They confirmed that Holliday (the unsuccessful candidate) had appealed against the outcome of the plebiscite; however, both also confirmed that the matter of dispute was quite unrelated to electoral fraud.

No other evidence came to light suggesting that the Morningside plebiscite had been infected with electoral malpractice, as had apparently occurred in the 1993 East Brisbane plebiscite.

The 1986 South Brisbane plebiscite (see chapter 7)

Note: In early 1986, Queensland and the Commonwealth kept separate electoral rolls. As these allegations relate to the Queensland Electoral Roll, Queensland criminal law applies in this case.

The original terms of reference were further extended when information was received that a number of electoral enrolments for the 1986 plebiscite in South Brisbane were false. Two of the enrolments related to two Members of the Legislative Assembly — Michael Hans Kaiser and Paul Thomas Lucas. The former resigned as the Member for Woodridge shortly afterwards; the latter is still an MLA.

David Barbagallo, who at the time of the plebiscite was Secretary of the East Brisbane branch of the ALP, admitted to the Inquiry that he organised a scheme to enrol people in the South Brisbane electorate for the purposes of the 1986 plebiscite. He admitted that, as part of his scheme, some people (associated with the AWU faction) with their knowledge and consent, were falsely enrolled at an address in the South Brisbane electorate.

Enrolment of Michael Kaiser

In 1986 Michael Kaiser was a young member of the Party. He admitted to the Inquiry that he signed an electoral enrolment form dated 7 January 1986 enrolling him at 11 Seventh Avenue, Coorparoo, even though he never lived there. He resigned as the Member for Woodridge immediately after making this admission. However, as the time limitation for prosecuting a false enrolment offence had passed no recommendation to the Queensland Director of Public Prosecutions could be made.

Charges of conspiracy under the Criminal Code of Queensland are not subject to a time limit for prosecution. However, given the time lapse and the fact that Kaiser could not be prosecuted for an offence of false enrolment, it was considered that a Court would determine it to be unfair to bring a charge of conspiracy to commit the offence of false enrolment against Kaiser.

The evidence Kaiser gave concerning the 1986 enrolment conflicted with evidence he had earlier given the Inquiry that he had never been involved in false enrolments. For reasons explained in the report, it was decided not to recommend the matter be referred to the Queensland Director of Public Prosecutions for consideration of perjury charges.

Enrolment of Paul Lucas

Paul Lucas acknowledged he signed an electoral enrolment form dated 14 January 1986 that gave his address as 11 Seventh Avenue, Coorparoo, a place at which he said he then lived. At the time, Sharon Cowden, whom he married in 1990, lived at this address. Despite some inconsistencies surrounding his evidence to the Inquiry, it was considered the evidence did not prove a false enrolment.

Recommendations that forgery charges against Barbagallo be considered

While admitting organising consensual false enrolments, David Barbagallo did not admit forging electoral enrolment forms in the names of four people — Brown, Heeremans, Kynaston and Crowley.

It is considered that the admissible evidence was sufficient to recommend that the matter be referred to the Queensland Director of Public Prosecutions for consideration as to whether Barbagallo should be charged with forgery of all r any of these four application forms.

For similar reasons as related to Kaiser, it is not recommended that consideration be given to any conspiracy charge.

Various plebiscites (see chapter 8)

• 1997 plebiscite for the state seat of Springwood

A Party member, John Ronchi, gave evidence to the Inquiry that a number of consensual false enrolments were made by various people in relation to the Springwood plebiscite. One of these people was the successful candidate Grant Musgrove (who later went on to win the seat of Springwood).

Under examination at the Inquiry, Grant Musgrove acknowledged that he had 'probably' engaged in falsely enrolling people (with their consent) and added that 'certainly there was a culture in the Party of those sort of things happening'. Musgrove later resigned from the Party. Evidence also showed that other people may have been involved in false enrolments for this plebiscite.

Given the time limitation for prosecution, none of these matters can be referred to the State or Commonwealth Director of Public Prosecutions.

• 1996 plebiscite for the Brisbane City Council ward of East Brisbane

There is clear evidence that there were a large number of false enrolments for the purpose of inflating numbers for the factions which were supporting the candidates. Most were consensual. On their own admissions, Powell, Bermingham, Dennis Mullins and Joseph Felice played a major role in these false enrolments. Of these men, Mullins supported the Labor Unity faction and the other three the AWU faction. However, the time has long since expired for prosecuting them or anyone who assisted them.

Both Powell and Bermingham implicated Michael Kaiser in organising consensual false enrolments. Powell also implicated Gary Fenlon, the current Member for Greenslopes. Bermingham said that he told Powell to consult Fenlon about suitable addresses for consensual false enrolments. Fenlon and Kaiser denied any improper involvement.

In relation to possible forged false enrolments, if forgery did indeed occur the evidence was not capable of establishing who was responsible.

It is interesting to note that the evidence relating to this plebiscite reveals that the practice of enrolling people at addresses at which they did not live for the purposes of a plebiscite extended beyond any particular ALP faction.

• State seat of Redlands

The CJC received information that the three stepsons of John Budd (Member for Redlands from 1992 to 1995) were falsely enrolled in the electorate of Redlands in 1994 and 1995.

While the motive of the three young men was nothing more sinister than to show support for their stepfather, the reality was that the enrolments enabled them to vote in public elections where they had no lawful entitlement to vote. The case is an interesting one because in her testimony to the Inquiry, John Budd's wife, Joan Budd (who had been the General Returning Officer of the ALP for 12 years) claimed that the practice of families of candidates supporting the candidate in this way was commonplace in the ALP and all parties and said she could see nothing wrong with it.

In examining this matter, no evidence of forgery came to light, and, once again, because of the time limitation on prosecuting consensual false enrolments, no charges could be recommended.

The Elder Family enrolments (see chapter 9)

The Inquiry's original terms of reference were extended when information was received that Deputy Premier James Elder may have been directly involved in the practice of consensual false enrolments. Elder resigned as Deputy Premier after admitting his involvement to the Inquiry.

According to Elder, for years various members of his 'close' family had been showing him support by filling out false enrolment forms, which were then lodged with the relevant electoral commission. He said the main purpose of this was to assist him with internal Party conferences and other ballots. However, a by-product of the activity was that his family members were also enabled to vote at local, state and federal elections in electorates or wards in which they had no lawful entitlement to vote. While describing the activity as 'silly', 'foolish' and 'reckless', he said he was not aware of it being a common practice within the Party.

Once again, owing to the time limitation for prosecuting consensual false enrolments, no charges can be recommended to either Director of Public Prosecutions. There was no evidence suggesting that any of the false enrolments was also a forgery.

Comments regarding electoral reform

It is true that the passage of time has made many of the activities uncovered by this investigation beyond the reach of the criminal law. However, their exposure to the public gaze through this Inquiry has had an important benefit. Governments (State and Federal), as well as the public, are now better informed of what has been going on and, therefore, are in a better position to remedy any perceived weaknesses in the present electoral system that have been exposed by the Inquiry. These weaknesses focus on the electoral enrolment and electoral voting procedures touching especially on preselections.

Some of the measures to which it is suggested consideration be given include:

• better procedures for identifying people when they initially apply for enrolment and when they apply to change enrolment (see page 167)
• better procedures for establishing proof of residency when a person applies for enrolment in a particular electorate (see page 167). Such reforms may or may not prove practicable and effective. In addition, other measures may be required. These include:
  • ongoing vigilance of the rules governing plebiscites and the application to plebiscites of sanctions under the criminal law (see page 168)
  • legislation requiring preselection processes of all political parties to be transparent and fair (see page 168)
  • supervision of plebiscites by the Electoral Commission of Queensland to ensure such transparency and fairness occurs (see page 168)
  • a change to the law that would make consensual false enrolments and other electoral offences indictable offences and therefore not subject to a time limitation for prosecution or, if there is to be a time limitation, increasing that time (see page 172)
  • revision and tightening of the electoral laws operating in Queensland, including increased penalties for transgressing these laws (see page 175)
  • codes of conduct for MLAs and local government councillors (see page 175)
  • a change to the law to introduce the doctrine of electoral agency to make candidates accountable for any illegal conduct of their electoral agents, i.e. campaign managers, and to provide sanctions under the criminal law (see page 178).