McLAY, Ms Leah, Acting Electoral Commissioner, Electoral Commission of South Australia MORIARTY, Mr Daniel, Manager, Compliance, Electoral Commission of South Australia Committee met at 0 9 :00 CHAIR ( Mr Laxale ): Good morning, everyone. I declare open this public hearing of the Joint Standing Committee on Electoral Matters for the inquiry into the 2025 federal election. In accordance with the committee's resolution of 4 August 2025, this hearing will be broadcast on the parliament's website, and the proof and official transcripts of proceedings will be published on the parliament's website. I remind members of the media who may be present or listening on the web of the need to fairly and accurately report the proceedings of the committee. I now welcome representatives of the Electoral Commission of South Australia to give evidence today. Thank you very much for your time today. Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and therefore has the same standing as proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege. I now invite you to make an opening statement before we proceed to discussion. Ms McLay : Firstly, thank you for the invitation to appear. The invitation was originally extended to Electoral Commissioner Mick Sherry, who appeared before this committee in 2022. Mr Sherry is on leave and unable to attend. I was appointed as deputy electoral commissioner to the Electoral Commission of South Australia in January of this year, and I have been acting during Mr Sherry's absence for the past month. I understand that the committee is again interested in hearing about South Australia's misleading-advertising legislative provisions, ECSA's experience in implementing those provisions and some other aspects of ECSA's electoral experience. My personal experience is limited, but I will do my best to answer your questions and provide assistance. I'm joined today by Dan Moriarty, who will be able to assist in answers to questions as well. CHAIR: Thank you, Leah and Daniel, for your time. I understand you've just gone through an election. You'll no doubt be very busy closing that off, so I really appreciate you spending some time before the committee once again. You're right. I'm not speaking on behalf of every member and senator here, but I'm certainly interested in the way in which you administer what I'll refer to as truth-in-advertising laws. I think you have a different name for it, which is understandable. Broadly talk us through how ECSA administers these laws and how they've evolved, if they have, over the time that they've been in place. Ms McLay : We receive complaints in respect of misleading advertising pursuant to section 113 of the Electoral Act. We require the complainant to provide us with sufficient information to assess the complaint. Sometimes we will need to go back to that complainant to get further information. We would generally want them to be very specific about the advertising itself and the justification for it fitting within the parameters of section 113. The approach has then been ECSA making contact with the publisher and giving them an initial and brief right of reply. That is to ensure that the staff who make decisions and the commissioner who makes decisions have sufficient information upon which to do that. From time to time, we receive complaints that are very light on detail and don't have sufficient detail to commence an investigation. Those complaints may be closed off, and the complainant will then be advised that that has been the approach that we have taken. We have a small team managing these complaints: we have a complaints manager, two senior complaints staff and two complaints officers. In the first instance, the complaints officers will assess these complaints. If it doesn't look as though it is likely to proceed or if there isn't sufficient information to proceed, a senior complaints officer will review that. If there is a proposal to take action in respect of the complaint or if the complaint involves one of the parliamentary parties, then it is referred to the commissioner for the commissioner to review. CHAIR: Within the process you mentioned, you contact the publisher. Have there been circumstances where you've been unable to contact the publisher? Ms McLay : Certainly, when complaints are in respect of things published on social media, it can be challenging to identify the publisher. There have been times where we haven't been able to identify the publisher and have had to proceed with our assessment of the complaint without an opportunity for them to provide information. CHAIR: Say you make a determination—if you've got a real example, please let me know. Someone lodges a complaint against an online ad. You attempt to contact the publisher. You deem that it's in breach of the legislation. You make a ruling. The ad's still there. Ms McLay : Yes, the challenging thing with that, of course, is that the remedies that are immediately available to the commissioner are to require a retraction or to require the cessation of the publication. Without being able to identify the publisher, that's very difficult. We do have some contacts with social media platforms, and we have developed relationships where they will receive a request from us to have the publication removed, but, again, it's up to them, at the end of the day, to facilitate that. CHAIR: So you don't have any legislation that you can use to direct the social media companies? Ms McLay : No. We don't have any powers to direct at all; the commissioner can request. If a direction or an order is going to be given, that needs to be given by the Supreme Court. CHAIR: Back to the process—you receive a complaint. You've mentioned you've got a small team. What's the turnaround, generally, on average, from receiving a complaint to reaching out to the publisher and making a determination? Ms McLay : I might throw that to Dan in a moment, but sometimes that can be dependent upon the circumstances of it. If, on its face, it appears to have the potential to be seriously misleading in the context of the election and the election is still live, then, obviously, that would be prioritised over something that may have been received by us at the close of the electoral period. But I'll hand that to Dan. Mr Moriarty : We have a service level agreement, which is that we acknowledge all complaints within two days, and we are in the high 90 per cent with that. We aim to conclude all complaints within five business days, but, as the acting electoral commissioner said, if we're going backwards and forwards with publishers, respondents and complainants, that can be extended—as it can be extended if we're going for external advice. Generally, just to echo what Leah said, if it will affect the outcome of the election, then we will prioritise action over the evidential burden. CHAIR: How many complaints did you receive in the last election? Mr Moriarty : We've received 323 electoral complaints—that does exclude the First Nations Voice to Parliament, which was running at the same time, and service complaints—and, of those, 48 related to the misleading, or truth-in-advertising, legislation. Ms McLay: It was slightly less than the 2022 election, where we received 79 complaints about misleading advertising. CHAIR: Is there any flow over between—do you get complaints from unsuspecting individuals complaining to you about federal advertising during the federal election campaign? Do you get any visibility over that—if you cast your mind back? You might not, Ms McLay. Ms McLay: I wasn't with the commission at the time. CHAIR: This might be hard for you to answer, but I'll ask it anyway. Do you see a stark difference in the type of advertising at a federal election—removing the details about the context and the issues—that would potentially fall foul of your laws from a federal perspective compared to the state? Do you have an eye on that? Ms McLay: I have not really taken the opportunity to consider that and would probably have to review some advertising to form an opinion, which would only be my opinion. Mr Moriarty : In answer to your first question, we do get complaints which relate to a federal matter. Our policy is that we will just refer them to the AEC for investigation. We will acknowledge the complainant's complaint and inform them that's what has occurred. In terms of the types of complaints, we get very few to actually make a decision on that or give a good answer on that. CHAIR: When do you stand up this team? Is it when the election is called? Do you recruit in house? Is it new hires? What's the administrative burden of this role? Ms McLay: The team needs to be available to handle complaints from as early as people start effectively campaigning in respect of the election. I wasn't there at the time, but I do believe we had some temporary staff who were brought in to boost the numbers in the team during that election period. We also have a local government election later this year, so we will be retaining. CHAIR: So these laws apply to local government as well, do they? Ms McLay: They do. Senator GROGAN: In what month did you bring on those additional staff? Ms McLay: That was prior to my commencement, so Dan will have to answer that. Mr Moriarty : Just to clarify, the legislation has a number of elements. One of the elements is that it has to affect the outcome of the election. That is really our test on when we bring staff in. We have one permanent staff member that deals with complaints as part of our FTA. Then we bring on additional ones depending on how many complaints. For example, for the state election, we started bringing staff on in the September of last year and then increased that staff as complaints came in. CHAIR: Is it difficult to find staff to do this role? Mr Moriarty : It is an interesting question. You can recruit staff that have complaints experience or have legal experience, but nuances of the act are often quite difficult. I wouldn't say it's difficult to recruit staff, but you have to have a period where staff are inducted or at least get used to the act and have the ability to cut their teeth, for want of a better word, on the minor offences. CHAIR: Do you get any external support? I think I read somewhere that some people from the Attorney-General's— Ms McLay: The Crown Solicitor's Office. CHAIR: Yes. How do they get involved? Ms McLay: The Crown Solicitor's Office is available to provide legal advice to us at any point in time in respect of any matter. But, from time to time, I think, initially and in 2022, it seemed that the Crown Solicitor's Office were consulted much more frequently. But now that we have got a package of advice, so to speak, our requirements to consult them have reduced, but they're available to us at any point in time to consult in respect of a specific complaint. On election day itself, they have staff members who position themselves in X's office so that we can resolve complaints very quickly during that period of time. We've also had, prior to this election and I think in the past as well, a staff member from the Attorney-General's legislative services division seconded to us part time in the run-up to the election to provide advice as required. Senator GROGAN: But that didn't occur this time? Ms McLay: Yes, it did. Senator GROGAN: You say that they're there on polling day. Are they there for prepoll as well? Ms McLay : No, they weren't onsite, but we did have a person who was seconded who was onsite. The person from legislative services who was seconded was onsite during our early voting. We had additional representation on polling day, but the Crown Solicitor's Office are always available to us. Am I correct in that? Mr Moriarty : At the close of nominations, we do as well, only because it's a very tight timescale and we need that advice immediately if a nomination comes in at the eleventh hour, so to speak. CHAIR: You mentioned that direction has to come from the Supreme Court. Ms McLay : Yes. CHAIR: Do you feel like you need powers to direct in circumstances without going through court, noting the tight timelines of elections? If there were a finding to retract something three days out before the election, is it feasible for the courts to then go and direct someone in those three days? What are the mechanics of how that works? Do you feel like you need a bit more flexibility? Ms McLay : When we're dealing with complaints, expediency is critical, so we do not apply the beyond-reasonable-doubt test. If an application is made to the Supreme Court, then they will apply that test because it is an offence under the legislation. We're not in a position to investigate these complaints in a full way. We have a process that gathers as much information as we can gather quickly, and then a decision is made and a request is appropriately made in that context. If we were to have a power to make an order or direct, then we may be having to apply a different burden of proof, and that wouldn't be something that ECSA would be easily able to manage, given it doesn't have an investigative function or investigative powers. CHAIR: The laws rely upon the goodwill, for lack of a better word, of the publisher to listen to your request. Ms McLay : That is generally the experience that ECSA has had in respect of this piece of legislation. Generally, when a request is made, there may be some toing and froing around the wording of a retraction, but I think there have been very few examples in ECSA's history of an outright refusal. Would that be correct, Dan? Mr Moriarty : Yes, I think so. There's only one from my memory in the last two to three years, so it's few and far between. Ms McLay : And that includes by-elections. CHAIR: Are the publishers generally political participants? Are they parties? Are they candidates? Or are they third parties? Have you seen complaints against third parties recently that don't have that same electoral accountability as political candidates and parties? Ms McLay : Both, but I can't comment on the proportions. Dan, are you able to comment on that? Mr Moriarty : I think the legislation is applicable to all, so it's applicable to third parties as well. And there has been an increase in third parties. As part of the electoral reforms that came in late last year, third parties are now required to be registered in South Australia, so that gives us a bit more governance over some of the third-party campaigners and brings them within our lens. The issue, as the electoral commissioner pointed out, is that we lose control when it comes to social media. It could be that there's an advertisement that's on social media that's been shared numerous times, and trying to trace that back within a very short timescale is often quite complex. CHAIR: Yes, social media has changed the field a little bit, and again it would be relying upon the goodwill of the social media companies to remove that. Ms McLay : If we're unable to track down the publisher, then the only option we have at that point in time is to contact the social media companies directly through our connections there and seek their assistance. CHAIR: Some have said having the Electoral Commission delve into the decision-making of what is misleading and what isn't could undermine the trust people have in an independent body to deliver an election. Has that been the experience of ECSA over the decades that this law has been in place? Ms McLay : It's difficult to comment on other people's perceptions to an action we may or may not have taken but we are mindful that, in administering this piece of legislation, there is a risk that it brings with it a possible perception of partisanship. We work hard to ensure that we act fairly and transparently with regard to these complaints to avoid that. CHAIR: How do you manage that perceived risk? Ms McLay : I joined in January, as I pointed out, but what is apparent to me is that ECSA does, and has done so historically, educated parties and candidates on this provision and has sought to give assistance and support prior to the election campaign commencing, or at least early in the election campaign. Through those relationships and through those earlier conversations and education, ECSA has been able to deal directly with the parties and remind them, at the point that a complaint is made, of our obligations in administering that legislation as well as their responsibilities in adhering to it. In terms of the decision-making, there is transparency and information provided to both the complainant and the publisher through that process—as much as we reasonably can, given that time is often of the essence. CHAIR: And do you do that same thing with registered third parties as well, that sort of outreach, education? I would imagine it would be a lot easier to do with established political parties and candidates. Is it the same approach to new entrants in the political process? Mr Moriarty : We don't necessarily hold briefing sessions for third parties. Part of that reason was we didn't expect so many people to register as third parties for the state election, so it's definitely something we will consider in the future. The important thing is that we take an education view straight off. If a complaint comes in, we're not going straight to any enforcement or requests; we will contact the person, explain the legislation to that person and encourage them to comply before then taking any further action. I guess it's education at the later stage as opposed to the start. CHAIR: One last question from me, before we go around the table. Do you have any evidence that the public have lost confidence in ECSA because of decisions you've made in relation to these truth in advertising laws? Ms McLay : I'm not aware of any evidence to support that. Senator COLBECK: What elements of the campaign does it apply to? Does it apply to anything published across the campaign—how to votes, leaflets, campaign signs and, of course, social media? Ms McLay : Yes; any form of electoral advertising is captured by this section of the legislation. Senator COLBECK: And so when it comes to making a judgement, what are the criteria you use to make a judgement? I suppose it's triggered by a complaint. Ms McLay : It's triggered by a complaint, and our complaints team just apply, faithfully, the legislative requirements. It has to be an advertisement published by any means. That includes radio or television. It cannot contain a statement purporting to be a statement of fact that is actually inaccurate and misleading. We really just apply the test that is set out in section 113. The third part of that is whether it is to a material extent. There are almost three steps. Firstly, is it an electoral advertisement? Secondly, does it contain a statement purporting to be a statement of fact that is actually inaccurate and misleading? Then, thirdly, is it misleading to a material extent? The team work through those requirements. Senator COLBECK: How's 'misleading to a material extent' interpreted? Ms McLay : I believe that some of the considerations might be the audience and how widely this publication may have been received. I'll ask Dan if there are other criteria that his team have been applying in that respect. None of these have come to me personally as yet, so I am a bit reliant on the experience of Dan's team. Mr Moriarty : Generally, as the electoral commissioner just said, it has to affect the outcome of the election. When we're considering the outcome of the election, we consider a number of different elements. It would be the time between the advertisement going live and the election. It would be the audience that the advertisement has gone out to—was that a postal drop to 10 houses versus an article in the Advertiser? We then consider whether a reasonable person would change their vote or their behaviour as a result of that. That's part of the material test. Senator COLBECK: So there's an element of judgement in the whole process in relation to how you actually make the application. Of the 48 that you had at the last election, can you categorise how those ended up being dealt with? Were there any references, for example, out of that process? If it goes to a trial, it's effectively beyond the campaign, isn't it? How do you manage those sorts of elements of the process, or have you had to manage those elements of the system? Ms McLay : Before Dan answers that, I'll point out that, of the 48 complaints we received for the last state election, only four of them were substantiated. There are a large number of complaints received proportionately that are not substantiated. Dan, will you respond to the second part of that question? Mr Moriarty : Yes. If I'm understanding your question correctly, it's how we apply the evidential test post election. Senator COLBECK: No, it was if any got referred to the legal process. Ms McLay : To the Supreme Court? No. Senator COLBECK: If I go back to the point that you made, you've had 48 complaints at the last election. Four of those have been or were substantiated, which meant that action needed to be taken by the advertiser. How has that changed or impacted the public's perception around truth in advertising? I'm using that as a term. Is there a perspective that the process is actually changing anything? Ms McLay : Unfortunately, I don't think that's a question we can answer. Senator COLBECK: I'm asking you for an opinion to a certain extent, which I'm not allowed to do. It's actually an interesting point in the overall scheme of things because the whole point of passing the legislation was to respond to concerns from the community about truth in advertising, and whether or not it's viewed as actually having an impact is important. Ms McLay : There's no doubt that individual complainants will be disappointed if we determine that their claim is unsubstantiated. As to what broader impact that has on the public perception, we couldn't comment. Senator GROGAN: Can I just interrupt? Senator COLBECK: If you must. Senator GROGAN: Thank you. Being a South Australian, I've always considered—this might help my colleagues—that, because we've had it for so long and the consistent players in the political system are well versed in it, there's almost a cultural piece within our political structures, which know it's there. When you unpack it, it sounds really light touch, which I would say it is. It's not that you go looking for anything; you wait till somebody brings it to you. Ms McLay : Yes. Senator GROGAN: Therefore, I think a lot of people would be surprised at the low number of complaints and the low number of substantiations. But I do think that, if you were to impose the same system in a different place, you'd have quite a different result, because I think that in South Australia we're very culturally indoctrinated into this. We are sticklers. Senator COLBECK: That's a really good advertisement. Senator GROGAN: Yes. CHAIR: Are you sticklers by nature, or are you sticklers because of this law? Senator GROGAN: We're a slowly boiled frog. Senator COLBECK: Senator Grogan's intervention goes to the point that the chair made earlier in respect of third-party players, who are relatively new to the process. What has your experience been in that sphere? We've seen quite a few come in over recent times. You've got Climate 200 and the teals. You've had some ebb and flow in and out over a period of time—GetUp!, for example, and some of those third party organisations, some of whom recognise themselves as being third-party players and some of whom believe they're not. I think that's a polite way to put it. How do you manage those sorts of things? Climate 200, for example, would say that they're not a third-party player; they're a supporter or funder, but they're not necessarily a third-party player. Are they registered in South Australia as a third party? Mr Moriarty : 'No' is the answer to your last question. They're not. But in South Australia—to sort of echo the senator's point—there's a package of legislation. The third-party register, the ban on or regulation of donations and the truth in advertising are a package. If we try to isolate just the truth in advertising, it may not be as effective for third parties. But, when you bring the third-party register and the other parts of the legislation into play at the same time, I think that changes the lens and the power of that legislation. Senator COLBECK: So how do Climate 200 sit within the system in South Australia if they're not registered as a third party? Some of us may have a different opinion on whether they are or are not, but how do they, for example, fit within the system when they're clearly a significant player in the system? Ms McLay : Certainly we brief political parties and we brief candidates, and part of that briefing is in respect of the responsibilities under section 113 and the offences under section 113. As Dan said earlier, we haven't extended those briefings to third parties yet. Otherwise our engagement with them is likely to be if they're a complainant or a publisher. While we are implementing the legislation, it is also an educational opportunity at that point. Senator GROGAN: And they get captured under the donations law. I'm not sure if that helps with it. Senator COLBECK: Well, it does, and it complicates things further. I recognise that it's not a simple system because it is about maintaining the integrity of the electoral system, which is—it doesn't matter whether it's state or federal—an important part of what we're all doing. In terms of the requirement for third parties to be registered in South Australia, what is the scope of that and what are the definitions there? Mr Moriarty : A third party has to incur over $10,000 in political expenditure— Senator COLBECK: How much? Mr Moriarty : $10,000 in political expenditure—so in advertising. They have to incur or intend to incur that amount to then become a third party. If they become a third party prior to, say, the last polling day, they continue to be a third party until 30 days post the next state election. Once they become a third party, they retain that status— Senator COLBECK: For the term of the parliament, effectively? Mr Moriarty : Yes. Senator GROGAN: What about associated entities? Mr Moriarty : Associated entities are required to be registered, and I guess some of that responsibility is on the parties to ensure that they are. It's important to also mention that unions are not part of third parties. Senator GROGAN: So is that the associated-entity piece? Mr Moriarty : They're not part of associated entities, but they can become third parties if they spend $10,000. Senator COLBECK: So the capture test is effectively an expenditure of, or intention to expend, $10,000. Mr Moriarty : That's correct. Senator COLBECK: You mentioned, in your answer to a question earlier, the level of activity around the close of nominations. What are the issues that arise at that point in time? What drives that particular point-in-time activity? Mr Moriarty : In terms of nomination, it is a firm cut-off. If they haven't submitted their application or nomination by that cut-off and it is a valid nomination, then they can't nominate for that election. Some of the issues we have are that they may not have enough nominators, the form might be incorrectly completed or they may not be on the South Australian electoral roll. We have to do some checks on the validity of that documentation, and, if the cut-off's at midday and they submit it at 11.55, we would then consult the onsite legal team to ensure we are compliant with that. Senator COLBECK: So that's more an issue about compliance of nomination rather than a— Mr Moriarty : That's right. Senator COLBECK: truth-in-advertising-type of— Ms McLay : The Crown Solicitor's Office does provide another check and balance in that process. Senator COLBECK: So that's a normal exercise for integrity of nomination. Thanks, Chair. CHAIR: Senator Grogan. Senator GROGAN: Thanks for coming. I think it is an interesting idea that maybe we need something else from a national perspective to deal with, minimise, regulate—however you want to term it—truth in political advertising. There's a balance obviously between freedom of speech and opinions and core dis- and misinformation. You may not want to answer this, but, if you were to kind of 'blue sky' it—if someone says, 'We've looked at your stuff, and it looks like it's got some legs'—how would you design a national system? What elements would you put in there, noting that this is a blue-sky exercise? Ms McLay : I think that, if there were consideration of a national system, one of the key considerations would be the capacity to administer that system, because, as you rightly pointed out, behaviours in South Australia have been shaped by the fact that this has been in legislation since 1985. If this were to be implemented in a new sphere, particularly in a national sphere, serious consideration would have to be given to how that is done. The commissioner does play a particular role in this. That isn't necessarily legislated; it is by choice and convention of the commissioner. But that can stretch that individual's capacity at a time when there are multiple competing demands for their attention as well. Senator GROGAN: And it has been suggested that it's not the right place for any measure. Ms McLay : I think the other considerations would be whether it was appropriate to provide expanded powers, and then, if there were expanded powers, whether they would appropriately sit with an electoral commission, given the concerns about perception of partisanship. At the moment, as I said, the commissioner can make a decision and can request action to be taken in respect of that, but they have no power to direct. So if there was a preference for broader powers then the next question would be: 'Is that appropriately sitting with the Electoral Commission and its independent role, with its primary focus on the delivery of an election, or is that more appropriately sitting somewhere else?' Senator GROGAN: I want to change topics now. I'm interested in enfranchisement and how you see things going in terms of enabling voters, particularly in rural, remote and regional areas. In South Australia, we have a proliferation of very, very small towns with a lot of distance between them. How do you feel the provision of access to voting is going? Ms McLay : Those issues are always challenging. We did, at this last election, invest quite a bit of consideration into accessibility, particularly for people in Australia with disabilities. One in five Australians have a disability and many of those are hidden disabilities. I'm happy to talk about some of the things that were implemented there to increase participation and accessibility. In terms of rural and regional locations, that is always challenging. We had some significant staffing challenges at the 2026 election, and it's particularly difficult to get sufficient suitable staff to provide that regional coverage. So that's always going to be a challenge for us. Senator GROGAN: I want to drill into that a little bit. I'm interested in your sense of what the other consistent barriers are. Obviously staffing is one. Ms McLay : Yes. Senator GROGAN: One of the things that has been floated is fixed-term elections, federally. As you know, we have a period where it can be called but the actual date is not known, whereas in most states now it's fixed, and so there's a fixed date, so for four years you know exactly when the election is going to be called. Ms McLay : That's true. Senator GROGAN: Does that not make it easier, in terms of staffing locations, because you know exactly when you need them and you have that period of time in which to find them and train them et cetera? Ms McLay : It certainly ought to make it easier, but some of the challenges that we have experienced would suggest that just finding suitable staff—a temporary election workforce—in small towns and small locations is always going to be challenging, even when you can pre-plan and prepare for that. And yet there is an expectation that polling booths will be placed in those locations, and, in fact, a requirement really that polling booths will be placed in those locations, because the ability to travel to another polling booth is significantly reduced. So those challenges still exist, even when you know in advance when the election is going to be conducted, because people will say that they're available and then life happens—illness or other events occur—and, when you're only offering them, effectively, a day's work, people will contact you at short notice and say, 'I'm no longer available.' That's a challenge anywhere, but it's a particular challenge in those small town locations. It's more difficult to get staff there at very short notice from other places as well. So certainly that is an issue. We had some issues that arose during the 2026 election with getting our mobile voting teams out to Aboriginal communities. There was, quite close to the election itself, some significant men's business called in some of those communities, which impacted our ability to—and we had to be fairly flexible by adjusting the make up of our teams and changing dates at short notice, for instance. We did have to charter some flights to get into some areas that were cut off by flooding. So there are definitely challenges that you can plan for and then there are some that will occur that you have to be able to pivot for and respond to quickly. Senator GROGAN: Those things would consistently come up, I imagine, through elections? We hear them over and over again. Obviously, you can have contingencies for them, but you don't know what's going to happen. Ms McLay : Absolutely. Senator GROGAN: I don't think it's a secret that this particular election has thrown up more issues than we've seen in previous state elections. Like I said, in the federal context, we're looking at what are the recommendations that this committee would provide to strengthen the national system and looking into the state systems and what works—go there; don't go there—in general. Why was this particular election so hard in South Australia? Ms McLay : I think that is largely going to be the subject matter for an independent, external review. Tom Rogers, who is a very experienced electoral commissioner, will be conducting that review and has already commenced that work. There's no doubt that there was quite a bit of change. There was some legislative and some internal decision-making that was put into effect at this election. But, as for the ultimate causes, that really is now subject to the independent review, which ECSA will be participating in fully, openly and transparently. Senator GROGAN: That's good to hear. Can you step us through some of the strategies or programs you've used to increase participation and engage voters? Ms McLay : At this election, there was for the first time telephone assisted voting for people who are vision or motor impaired. I believe that was on the back of a recommendation from ECSA after the 2022 election. That was very successfully conducted. We also did some work with disability agencies in respect of hidden disabilities and, in particular, the sunflower lanyards for people with hidden disabilities. We trained officials and we set up three low-sensory, inclusive early voting locations. They were assessed on things like carpeting, low lighting, reduced window glare, set-down areas where people could step out to decompress et cetera. Again, those were very successful and well received. We developed a number of ECSA TV video explainers, and they were captured fairly broadly via social media. They were targeting perhaps young voters, people who hadn't attended a polling booth before or people who were anxious about attending a polling booth. We tried to offer clear and accessible information to them about what to expect. There were also 50,000-plus personal letters sent to first-time voters by the Electoral Commissioner, which again set out easy-to-understand information about what to expect when they attended a polling booth and so forth, and we've had some positive feedback from individuals who accessed one or other of those options. Senator GROGAN: Where do you see the biggest gaps in people's knowledge about voting and turning up to a polling booth and engaging in an election? Ms McLay : I haven't really done any particular assessment in respect of that. But my personal assumption would be that, for people who have not participated in the process before or have not participated in the process a number of times, obviously their knowledge and comfort levels would be reduced. As to people who are perhaps suffering from anxiety or some other hidden disability, certainly the feedback that we have had from the disability agencies that we've been working with is that they find the process very stressful and have historically opted out of that process because it seems too big an ask. So we worked with them quite closely to see what we could do. We took advice and worked with them during the period prior to the election, and right up to the conclusion of the election, on how we could make that process more accessible to them. Given, as I said, that that is one in five Australians—whether they're all impacted in terms of their ability to cast a vote, I couldn't say—even if a significant proportion of them are, or even just a proportion, that's potentially a large number of voters who might not otherwise participate in the process if particular considerations aren't put into effect. Senator GROGAN: Civics education, or competency in that subject in schools, has been declining significantly. This committee did a report a couple of years ago. Since that time, South Australia has implemented some significant changes in terms of civics education. Are you aware of those changes? Ms McLay : I have a low level of awareness, but what I can say is that ECSA does employ, full time, a qualified teacher who provides outreach and goes into schools and delivers civics education. Senator GROGAN: That was going to be my next question. What do you do? Do you engage with the schools? How does that work? Is there enough of it? We do have a concern about people—not necessarily people with a disability or language barriers or anything like that, but just in general—understanding and getting involved in the process and understanding the importance of that, in terms of the strength of our country into the future. What's the program that you do in schools, and what's the frequency of that? What schools do you get to? Ms McLay : I'm not completely across that program, but I have spoken to the staff member responsible for the delivery of it. She is fully engaged, largely in that work, working with schools and in the education system. I believe that she may be delivering programs to schools and children from year 5 up and that the programs are targeted to the particular age group. Her attendance and delivery of that program would also, I imagine, increase a school's own capacity to deliver that sort of civics education. But, unfortunately, I'm not really across the detail of it. Senator GROGAN: That's okay. I wonder if you would take that on notice— Ms McLay : Yes. Senator GROGAN: and give us a rundown of what that program does and what the reach of it is. I spend a lot of time with regional and remote schools, and their capacity to engage in a number of the programs that are available federally is a challenge. Ms McLay : Yes. Senator GROGAN: We're looking for all the good ideas we can find— CHAIR: Absolutely. Senator GROGAN: and what's working and not working. Maybe your staff member has some sense of where the program could be strengthened or improved. Anything along those lines would really be very useful. Ms McLay : Absolutely. We'll take that on notice. Senator GROGAN: You might not want to answer this one either. Is postal voting going to be viable in the long term? Ms McLay : Postal voting presents an increasing level of challenge, from my preliminary assessments and the feedback that I've had from the team who've been managing that postal voting service for ECSA. First, the cost has risen significantly, even between the last two state elections. It's a real issue for us going into the local government elections, of course, which are entirely postal voting. There's also the issue of the ability to get the postal votes out within the legislated timeframes and returned to us within the legislated timeframes. That is particularly challenging when you talk about overseas postal votes. I don't yet have the data for this election as to the number of postal votes that were returned from overseas, but I certainly was given a figure, which I wouldn't be happy to quote here in this forum. It was a very small number of overseas postal votes returned in time to be counted at the last state election in 2022. Senator GROGAN: Obviously, elections are changing. We've tried three weeks of prepoll. Mr SMALL: Let's not do that again. Senator GROGAN: Let's not do that again. Senator COLBECK: It's not a good idea in the middle of winter. Senator GROGAN: Yes. I'm never going to be warm again! Down to the state election just gone, which was one week—we might think that's a really good idea. But, in terms of enfranchising voters, do you have any views, perspectives, ideas or points to consider around the structure of prepoll, postal, phone and all of the different things that we tweak, change and work with? What's the magic pudding of all of those things? What are the considerations we should be looking at when making those kinds of recommendations? Ms McLay : Early voting, or prepolling, was certainly very popular in South Australia this year, even though the timeframe was reduced from two weeks to one week. There were more people participating in early voting than ever before, and that was likely because the restrictions that had been in place previously were removed so anybody could access early voting. Senator GROGAN: Just to get everyone on the same page—previously, you needed a reason. Ms McLay : You needed a reason to cast your vote early. You needed to be unavailable on polling day. While it wasn't necessarily difficult to convince the polling staff and there wasn't a high threshold to establish that, I'm sure that all of the people who are diligent rule followers would not have turned up for early voting. This time, they were invited to. It certainly was popular. That seems to be a trend nationally and even internationally. People are welcoming more flexibility around the timing of the casting of their vote. Telephone assisted voting was implemented for the first time and was very successful in South Australia. It would be worthy of consideration as to whether there were opportunities to expand or extend that and increase voting accessibility for other groups. One that personally springs to mind is people who are overseas, because of the challenge of us getting those postal votes returned. I believe that that has been proposed by ECSA in the past and may be proposed again in the future. The flexibility that that provides would enhance the accessibility of the voting system. Senator GROGAN: Great. Thank you. I appreciate it. CHAIR: Mr Small? Mr SMALL: If I could please drag you back to section 113, how does the commission make its position on complaints clear? Do you publicly disclose receipt of a complaint or closure of a complaint? Can you describe that process for me? Ms McLay : Dan, do you want to pick that one up? Mr Moriarty : We have a policy of not disclosing complaints. We will, in our reports, identify how many complaints and then subdivide that amongst the offence groups or the provisions of the legislation. But we generally won't comment either on active complaints or when the complaints have been received. Mr SMALL: Do participants often claim victory in that their opponents lied or whatever through the electoral process? I'm aware of media releases and things flying around during by-elections. How do you see that fitting against the commission, the public arbiter of this, saying nothing whilst participants are saying, 'Yes, the police said they lied.' Ms McLay : In preparation for this, actually, I reviewed the Hansard from the appearance of Mick Sherry at the 2022 committee. That was certainly something that he spoke about in a bit of detail—that often the decision of the commissioner was immediately publicised by the complaining party and almost used, in some ways, as a campaigning tool in and of itself. Certainly, that was something that he spoke about in 2022. I imagine that those behaviours haven't necessarily changed in that time. Mr SMALL: An A+ for your preparation, Ms McLay, because that's better than my homework for this hearing, I think! One of the things that's interesting to me is how much, through the history of this legislation—to the extent you're aware is fine—complainants have pushed this all the way to a court process. I'd like to know how much case law now exists about the implementation of the act. Ms McLay : Certainly, there weren't any applications to the Supreme Court in 2026. I was actually registrar of the Supreme Court at the 2022 election, and I don't believe any applications were received then either. Prior to that, I couldn't comment here today. There are two ways in which the court might become involved in this process. One is an application, perhaps for an injunction, to the Supreme Court at the time of or during the election itself. The other way that the court may be involved is if an application is subsequently taken to the Court of Disputed Returns on the basis that a publication that was factually incorrect materially affected the outcome of the election. I'm not personally aware of any applications of that nature either, although I'm not going back into the entire history of this piece of legislation when I say that. Mr SMALL: I did a little bit. Senator GROGAN: That makes up for not reading the transcript. Mr SMALL: Yes, that's right! One of the things that was really interesting to me was the Hanna v Sibbons case. I didn't get time, sorry, to try and put this into context as to how often this has happened. Effectively, it was a case taken to the Supreme Court of South Australia sitting as the Court of Disputed Returns in 2010, and it related to a claim that someone was soft on crime—as, I guess, a political statement. The court found that it was a statement of opinion based upon statements of fact recorded in Hansard—that is, quotes—rather than a statement of fact. That's very cute, right? That's a classic legal outcome. I have two questions. Firstly, if I walked down the Rundle Mall at the moment and asked people, 'Do you believe everything that you see in political advertising in South Australia?' would they say yes? That points to the efficacy of the laws in my view. Secondly, do you think that the lack of disputation in the most recent elections probably points to the fact that the main players now are really good at targeting their advertising to the loopholes, if you like, in the law? I can make anything a statement of opinion based on a statement of fact if I craft my advertising correctly. Ms McLay : I don't think I can comment on that, although Dan may have a comment. The critical thing with the piece of legislation is that it must purport to be a statement of fact. That means that anybody can still, as is appropriate in a democracy in the nature of Australia's democracy, express an opinion. It's not an offence to express your opinion. You have to be purporting to make a statement of fact. That is quite a significant distinction. I'm not sure what the basis for that decision is. But if it is the expression of opinion, then it is not captured by that legislation. Mr Moriarty : I think I might just add that, even where the cases are grey—for want of a better word—for the statement of fact, we will go to the next test to see whether it is inaccurate and misleading. Quite often what will happen is that it will fail that test or the material test anyway, but we will go to that next stage if we're unsure of whether it's a statement of fact or a statement of opinion. Mr SMALL: 'Inaccurate or misleading'—that's good, actually; that's where I wanted to go next. If you consider—a lot of politics relies on modelling potential policy outcomes. How do you make judgements about the accuracy or otherwise of someone's modelling? Mr Moriarty : It's important to make the distinction that it has to be inaccurate and misleading. It has to fit both tests; it's not just inaccurate or just misleading. Then we will look at whether there are verifiable facts, whether there's anything that's in a report in parliament, in Hansard, and then base our judgement on that. Mr SMALL: The classic one—which is probably topical at the moment—was the 2022 claim about $275 off your power bill. There was RepuTex modelling to say that. It was heavily contested. Would that have fallen foul of section 113 of the legislation if it were applied nationally? Ms McLay : Look, I think it would be difficult for us to comment today, because any assessments we make are on the basis of a complaint providing us with the information, providing us with information as to why it's correct, a conversation with the publisher. We wouldn't be in a position to make a decision on that one today in this forum. Mr SMALL: The obvious parallel I found was the run-up to the 2018 South Australian election, in which the Liberals were making claims about $300 cost savings, associated with an energy policy, that they were asked to retract. I'd be very interested to know the basis. Perhaps, on notice, you could provide more information about how the commission made that decision? Ms McLay : We can certainly look and provide some further information about that particular decision in the 2018 state election. Mr SMALL: In the contemplation of any potential expansion or applicability of similar laws federally, it would be useful to understand—given so much of modern politics does rely on this—how the law has been framed and how it's been applied by the commission in a real jurisdiction rather than in a hypothetical one. That would be very useful. Mr Moriarty : The only thing I might add there is that there are three tests, as we've described, or three elements. A statement can be a statement of fact, and it can be inaccurate and misleading, but it might not fulfil the last test of being 'to a material extent'. Mr SMALL: Great! How do you decide what a material extent is in an election? Mr Moriarty : As we spoke about previously, it depends on the scope of it; where that advertisement's been—whether it's, as I said, a letter drop, whether it's on national radio, whether it's in the Advertiser; the context of the actual advertisements—we take a holistic view of that; and who it is aimed at. Then you've got the ordinary person, or the pub-test side of that, in some respect—would a person feel that this would change their voting behaviour? Then we come to a determination on that. Ms McLay : Remember, too, that we're not applying the beyond-reasonable-doubt standard of proof at ECSA. The commission is just making a decision on the basis of the information that it has available in, generally, a fairly tight timeframe. CHAIR: So, with your team, when you make these assessments, you get the complainant and you ask them to provide information. If there's not enough information, you just dismiss it or you ask them for more. Ms McLay : Not necessarily. CHAIR: Sorry, I generalised a bit there. You ask them to provide information. You then go back to the publisher. You give them the opportunity to respond. Do the Electoral Commission themselves do their own research, or do you just rely on the complainant's and the publisher's information? Ms McLay : We don't have any particular investigative powers, but, for instance, if it's published on social media, the team may look at the site that it has been published on and perhaps the number of people who have viewed or commented on that particular publication, and that may be part of their consideration. For instance, if it had been published on a social media platform, we were not aware of it having been published anywhere else and it seemed that a very small number of people had actually accessed that or viewed that, that may be a consideration. CHAIR: Do you verify— Ms McLay : But we don't have any investigative powers, so it's a very limited and cursory look at those sorts of things. CHAIR: So you really just rely on the information provided to you through the process, and that's about it. Ms McLay : Yes, generally. Mr SMALL: How do you reconcile ECSA applying a reasonable approach, if I could frame it that way, with the fact that, for any participant to push it to the next level, the court will apply such a high bar? You mentioned it's a criminal offence. Ms McLay : Yes, it's a criminal offence. Mr SMALL: Therefore, you go straight from ECSA being reasonable to beyond a reasonable doubt, satisfying all three of those tests, which to me would be a very high bar legally, but I'm not a lawyer. How do you reconcile that in the operation of this? If you've got well-funded political participants—and we have many on the federal stage, some more notable than others, one of whom is actually quite famously litigious—would you see that billionaires who are politically interested would drive a truck through this by just saying, 'I'll see you in court'? Ms McLay : I think these are questions probably for the policymakers rather than the legislation administrators, but certainly the tests are very clear in the legislation itself. It's subsection (4) of the section. The electoral commissioner just has to be satisfied. The electoral commissioner is operating within a particular environment and particular timeframes, and the test is 'satisfied'. It's very clear in subsection (5), however, that the Supreme Court has to be satisfied beyond reasonable doubt. It does create an offence. At the conclusion of the election process, ECSA will determine and does make a decision as to whether they will refer any of the complaints to the Crown Solicitor's Office for potential prosecution. If they are prosecuted and they go to court, then that reasonable doubt test will be applied there as well. The Supreme Court would apply it in determining whether they were going to make an injunction or direct any behaviours, and the court would again apply that beyond-reasonable-doubt standard to any criminal prosecutions. Mr SMALL: The effect of ECSA making a request to a publisher is obviously going to vary depending on the medium in which the advertisement was made. If there's a letter or a letter drop, like a physical or a paper advertisement, something physical, that is the subject of a complaint in which the commissioner makes a—would you say a retraction request? How do you describe it? Ms McLay : Yes. The— Mr SMALL: How does that work, given that that's now material that exists and is in the electorate? Does it simply require the publisher not to publish any more of it, or are they, in fact, required to publish an equivalent bit of material saying something different? Ms McLay : The commissioner can request either that the publication ceases or that a retraction is published or a combination of those. Of the four substantiated complaints in the recent election, the action that was taken on one was to amend the advertisement. One was that a retraction was required. Another was to retract and cease publication. And another one was no action, because it was finally determined after the election had concluded. So those are the options available to the commissioner. Mr SMALL: What are the tests applied to delineate an electoral advertisement from a social media post—that's not paid advertising? Do you know what I mean? How do you determine or delineate electoral advertisement? Mr Moriarty : That's defined in the act as well. An electoral advertisement contains electoral material and material that will affect the outcome of an election. It doesn't have to be paid or unpaid. It doesn't matter what medium it's on. It can be on social media, printed or by other means. Mr SMALL: Does it even need to be authorised? Mr Moriarty : All electoral material has to be authorised. Ms McLay : That may be a breach of another section of legislation— Mr SMALL: Yes, if you run something else. Ms McLay : in addition to the complaint that it's misleading. If it isn't authorised then that will also be a consideration. Mr SMALL: That's interesting. Mr SMALL: With the rise of non-major party political participants, how do you experience, as the commission, participants who are not backed by a big machine with the resources to substantiate a claim or produce evidence and all that sort of thing in a timely way? Given the nature of your experience, is that an issue? Mr Moriarty : The smaller part is that it is not backed by funding on the major parties, and they do require some more education and awareness. But generally, we find that they are more willing to comply with the legislation because they are smaller than the larger participants. Mr SMALL: The former, long-time now, South Australian commissioner Steve Tully, who went on to run the Victorian commission, previously said publicly that section 113 meant 'everyone wanted to complain about everything'. That was some time ago. I think it was 2010. Have you found that it subsided over time? You've given us the numbers for the last two elections. Is that down markedly on the elections prior to that? Ms McLay : I believe that the figures the previous commissioner gave for the 2018 election to this committee had suggested an increase between 2018 and 2022, and then it has dropped away again. I haven't got any earlier figures with me, unfortunately, to indicate what the overall trend might be. Mr SMALL: That's fine. The other thing is we've seen electoral law reform in the High Court a lot lately. Has ECSA considered recently or sought advice recently on whether or not section 113 would likely survive a challenge today? I understand there was one a long time ago but pre-dating the Lange and McCloy cases which so-called settled the implied right of political communication. Is that something the commission has looked at? Ms McLay : Not that I'm aware of but it may also not be something that the commission would seek particular advice on. We're more likely to seek advice to assist us with the implementation of the legislation. If something was to occur to call into question the legislation, we might think differently, but the answer's no. Mr SMALL: That's fine. In the brief time I've been on this committee, we've also tackled a little bit the rise of AI and its impact in elections, particularly through the potential for interference and the like. Is it your view that, where AI material is published and the publisher is identifiable, you could take action, but that there's still a potential weakness in our democratic safeguards, if you like, by the fact that unchecked AI or bad actors can still promulgate harmful material at new and increasing rates? Ms McLay : There certainly is a challenge that we're aware of in terms of identifying whether something is AI or has been created using traditional methods of manipulating images and videos. That can be challenging. We have legislation requiring that anything that is AI generated has a statement to that effect. It also prohibits the use of a person's image without their consent and AI. That prohibits the deepfake scenarios, but there are challenges for an organisation like ours in determining whether an image is in fact AI generated or is some other form of manipulation or creation. Dan may want to speak a little bit more about that. Mr Moriarty : I think the only thing I will add is this highlights the importance of having really good relationships with the social media companies, and we also have relationships with the electoral integrity taskforce with a member being the Signals Directorate. If there are mis- or disinformation campaigns, we are able to feed that back through the committee so that can be looked at on a national scale. Mr SMALL: That's effectively done through different avenues to this though, isn't it? Mr Moriarty : That's correct. Mr SMALL: Yes, that's interesting. This is the last one from me, Chair. It might be hard, but if you were designing section 113 today from a blank canvas, is there anything that you'd include to make ECSA's life easier in administering this regime? Ms McLay : Really, I think that is probably a question best directed to policymakers. If proposals to amend the section were being considered, I imagine we would be consulted and we would only participate in that consultation process to the extent that there was an administrative consideration that needed to be taken into account. Mr SMALL: That's the answer I was expecting. But there we go. Thank you very much. CHAIR: I'll try and get an answer a different way. Ms McLay : I might just get better at answering the question! You do realise that! CHAIR: What are the challenges you currently face administering the laws as they are? You mentioned social media. Ms McLay : Yes, there is certainly social media and us not being able to determine who the publisher is. For the AI-specific sections, there is us being able to determine that it is in fact AI created. There are also the challenges of working in the very tight timeframes, which we would be expected to work within, and gathering information to allow the commission to be satisfied that the section's criteria have been met. Again, I understand that, from time to time, there have been challenges to the commissioner's proposed terms of a retraction—sometimes people have hired counsel and there's been a lot of toing and froing, which again chews up important time. CHAIR: Has resourcing ever been a challenge for ECSA in relation to this aspect? I'm assuming you just get a big bucket of money and you have to manage it. Would more staff assist with some of the time pressure challenges that you may face? Ms McLay : I believe we've been adequately resourced for this particular function. CHAIR: Okay. Mr Moriarty : I think I might just add to that. The issue probably isn't staffing; it's institutional knowledge. Media used to be print, but now it's gone on to electronic social media and artificial intelligence, so keeping up with modern technologies in a small amount of time and recruiting staff with that knowledge and experience may be an issue moving forward. CHAIR: Can you spell out that issue with the commissioner's proposed retraction. Could you walk me through a process to get there? You've made a determination that something needs to be retracted. The commissioner then, what, drafts a statement on behalf of the publisher? Ms McLay : The commissioner sets out the terms. My understanding is that the commissioner has, in the past, set out the terms of that retraction and has then had parties wanting to litigate the terms of that retraction. CHAIR: Sorry, this is a stupid question. What are the terms of the retraction? Ms McLay : The actual wording of the retraction, where it's published, how it's published and so forth. CHAIR: When it's published. How it's published. Ms McLay : Yes. If you refer back to the Hansard in 2022, he spoke to that. There has been contact by counsel representing one or other of the parties in an attempt to renegotiate the terms, and that has, again, caused some delay. CHAIR: Has that caused delay to such an extent that the timeframe exceeds an election date? Ms McLay : I'm afraid I couldn't comment on that. CHAIR: Okay. Mr Burnell. Mr BURNELL: Thank you both for presenting today. I'm sorry I was a little bit late this morning; I got stuck in traffic on the way in from the northern suburbs. I want to go to the recent changes around campaigning material at polling booth locations. Have you seen a reduction in antisocial behaviour at polling booths at the 2026 election, in comparison to previous elections, with this new legislation in place? Ms McLay : I know that we only had a few isolated examples of antisocial behaviour at the 2026 election, but, unfortunately, I cannot comment on the trend. Dan, are you able to comment on the trend? Mr Moriarty : I probably can't comment on the trend, but I will say that we have strong working relationships with South Australia Police and other security contractors. As with section 113, we do the information sessions for our candidates and our parties. We will talk about their scrutineers and we will talk about their party workers and talk about how we rely on them to also police their workers. Mr BURNELL: This committee has gone around the country and it seems there has been an escalation at federal polling booths with the amount of material being displayed at prepoll and polling booths, to the point where that has started to create hostile engagement between political campaigners. Yet, from a South Australian perspective, we don't seem to see, admittedly in non-target held seats, that level of hostile interaction. I wonder if it's somewhat related to the fact that there is a reduction in material here in South Australia. Ms McLay : We're not sure about drawing the link between the two, but certainly there are prescribed limits to the amount of election material that can be displayed around a polling booth. My observations of the polling booths that I visited during the election campaign were that seemed to be a level of reasonableness and collaboration amongst the party workers on the display of that material. Mr BURNELL: I want to touch on staffing challenges. It has been well reported that there have been challenges around getting the staffing levels right at this election, at the state level. Has that been a trend? Has that been seen by ECSA over a longer period of time where we're struggling to find workers for the execution of state elections? Or is there work being done by the commission to try to reverse that trend? Ms McLay : It is my understanding that it has always been an issue. There is always a quite high proportion of people who will withdrawal at some point prior to election day their willingness or ability to work. The 2026 election saw a larger than usual number of people do that. My understanding is that this is a trend nationwide. It is something that a number of commissions are grappling with. It is challenging to get and secure people for these short-term, temporary workforce placements. It's more challenging in remote locations because there's a smaller community and a smaller number of participants in the community willing to and experienced in running polling booths. It certainly was a bigger challenge in 2026 than previously, but it is part of a trend. Mr BURNELL: Some people would probably suggest that would be an argument for why we need to expand prepoll to a longer period of time. If prepoll were longer, would it make it substantially more difficult to secure staffing? Has there been a differentiation between length of prepoll compared to staffing levels in the past? Ms McLay: I'm not sure I can give a detailed response to that. Certainly we did not run as many prepoll locations. I think, off the top of my head, the figure is 59 in total, perhaps, compared to the 680-odd polling booths that we have to staff on election day. The early voting centres, as we call them—we tend to only have one or maybe two per district, which does mean that people have to travel a greater distance to cast their vote, but they have a longer period of time during which they can do that. The high number of people who turned out for early voting certainly does take some of the pressure off the polling booths, but it is that expectation of having them at multiple locations in close proximity in metropolitan areas to where people live. In the town that you live in regional areas, that does mean a significant workforce has to be engaged and deployed for polling day. Mr BURNELL: I want to touch probably firstly on your prepoll locations. So far, we've heard evidence across the country that accessibility is not being met at the federal level. What is the process that ECSA goes through to find suitable locations that meet the accessibility requirements of the general voting public? Is that aided by the fact that you have fixed terms or do you feel like it doesn't make much of a difference? I'm speaking for the northern suburbs locations that were picked. I felt they were exceptionally better than the options that we had for the federal election. For people with disability, primarily, parking was closer, and it was a lot safer for them to make their way in and out of the voting centre than what we had federally. Ms McLay: For the first time, at the 2026 election, the responsibility for identifying and securing premises was centralised. Previously, the returning officers had taken some responsibility for the identification of the locations. We do often look to locations that we have used in the past as a starting point, particularly in regional sites. For things like early voting centres, I believe that a number of new locations were identified for the 2026 election. There is a checklist of features that we look for in a polling booth location. One of them is disability parking. Sometimes compromises do have to be made in respect of our ability to find a location that ticks every single thing on that checklist. But we certainly endeavour to find locations that are central to where people are likely to attend and that meet accessibility requirements. Again, it presents challenges because these are short-term rentals and you are having to identify locations that, not least, either are available or, if they're used for another purpose, will be made available to us for the period of time we require them. So there are some challenges with that, which I'm sure every electoral commission has to attend to. Mr BURNELL: You mentioned the use of telephone assisted voting. Is this an area where there's an ability for potential expansion or consideration for expansion around those with mobility restrictions? Ms McLay : At the moment, the legislation allows us to offer telephone assisted voting for people who are either vision or motor impaired. They will make contact with a call centre that we set up specifically for that purpose and advise the call centre of their impairment. Then there is a telephone assisted voting process which involves two separate staff members to manage the integrity of the voting process itself. If the parliament were inclined to expand that scope, that's certainly something that ECSA could deliver in an expanded way to other groups. Mr BURNELL: Thank you. CHAIR: Richard. Senator COLBECK: I want to go back to the social media companies and your interactions with them, particularly in circumstances of not being able to identify the publisher—I'm not sure if that's the right term. I'm thinking of the social media companies in the context of being publishers as well. Are there any obligations on them as publishers with respect to section 113? Ms McLay : Remember that they're all international organisations. Senator COLBECK: I understand that. So you're relying on goodwill in that sense, for them to act? Ms McLay : Yes. Senator COLBECK: In terms of your processes, if you can't find the person who put up the post, to manage each side of the equation, are you then left to make a judgement based on the complaint in terms of determining the criterion, which is that it was a statement of fact or purporting to be factual? Ms McLay : Yes. The commission could be satisfied, without speaking to the publisher, that the legislative criteria have been met. This inability to contact the publisher, though, may affect the extent to which we can take any action. Senator COLBECK: Okay. So there's no obligation? I'm going to go back to the way that I was framing it. I'm thinking about social media platforms alongside a newspaper, which is the old school way—let's call it that. If there's an advertisement in the newspaper and there's a determination, it would come back down to a statement of retraction or something of that nature, as opposed to taking a post down and perhaps making a statement in response? Ms McLay : If the commissioner is satisfied that the electoral advertisement contains a statement purporting to be a statement of fact that is inaccurate or misleading and is material, the commissioner can request the advertiser to either withdraw the advertisement or publish a retraction in specified terms. That really is the extent of the powers, for lack of a better word, that the commissioner has in these circumstances: to satisfy himself or herself that the criteria have been met and then to make a request. So we're never in a position of being able to direct either the publisher or the social media company. However, as Dan pointed out, we have developed relationships and have connections with social media companies, and we'll leverage those where we think it's appropriate to have something removed. Senator COLBECK: I have a question on a completely different matter. On your conversation with Mr Burnell in relation to electoral matter at polling booths, just for the purposes of the public process, what are the limitations around what is permitted at a polling booth? Some of them at a federal level now are decorated to an extreme degree. CHAIR: 'Decorated' is a good word! Senator GROGAN: 'Beautified'? Senator COLBECK: 'Plastered'? Yes. What are the restrictions that exist at a state level here in South Australia? Ms McLay : Dan, you've probably got that— Mr Moriarty : Yes. Section 115 of the Electoral Act sets out what the limitations are. In part, the advertisement can't be in excess of one square metre. In terms of the question you're asking, the limitation is set out in the regulations. Off the top of my head, I think it's 12 per candidate, but—I'm getting confirmation from your colleague. We do enforce— Senator COLBECK: Twelve metres of advertising? Mr Moriarty : Each one can only have 12 one-metre-squared advertisements relating to that candidate. Ms McLay : Generally, these are corflutes that people turn up to polling booths with. There's a maximum number. Senator COLBECK: So, in those terms, what we would term 'wrap' is— CHAIR: Bunting. Senator COLBECK: Bunting? CHAIR: [Inaudible] one square metre. Senator GROGAN: We don't bunt. Senator COLBECK: You don't bunt here in South Australia? Mr Moriarty : We also have restrictions on when those advertisements can go up, as the Electoral Commissioner was saying, and that changes with context. In terms of federal, they tend to be up for that whole period, whereas, in the South Australian context, they can only be put up immediately before and they have to be taken down immediately after the hours of polling. Senator COLBECK: So, for the period of prepoll, whatever we decide that that might be, any decoration or adornment or plastering of the booth would have to be done on the day and then removed— Unidentified speaker: That evening. Senator COLBECK: That evening? Mr Moriarty : That's correct. Senator COLBECK: And up to 12 pieces? Ms McLay : Yes. Senator COLBECK:   So—I shouldn't get too creative here. I was going to ask for an opinion, which I'm not allowed to. Do you find that satisfactorily manages the level of impact of those things on a particular booth and covers off the variations that there might be to a booth? Mr Moriarty : I guess there's a degree of self-policing via complaints, if that makes sense. If a participant puts up too many advertisements, or if they don't comply with legislation, we will receive a complaint, and then we will act on that complaint. For the majority of complaints, because we want to take immediate action, we will phone the party agent or the party officer and outline the legislation. Particularly within the 2026 election, they would take immediate action and either remove the offending material or give their staff or their party workers some further direction. Senator COLBECK: And you've found that that relationship, by having that conversation through a designated point for each of the parties, has appropriately managed— Mr Moriarty : That is definitely the lens or the manner in which we did it at this election, and it was efficient. Instead of contacting individual candidates, who may not understand the legislation to the degree that a party officer or their agent may, we used a single point of contact to outline that legislation. We also found some of the participants would then push that message out to all of their candidates, which meant that we were getting education wider than that one incident. Senator COLBECK: What about third parties in this context? How are you finding that? Are they subject to the same regulatory framework? Mr Moriarty : They are unable to put up any advertisements at the polling location, because they're not candidates in that election. We didn't have any complaints that related to third parties attempting to do that. Mr SMALL: What is the radius for that requirement? How close to a booth can a third party advertise or solicit? Mr Moriarty : It's within six to 50 metres. They can't be any closer than six metres to the entrance of that polling location. It's important to recognise that that may not be the door of the polling location if it's within, say, a compound like a school. Senator COLBECK: So the determination of what the polling booth is is a matter for the booth supervisor? Mr Moriarty : It's a matter for the returning officer. CHAIR: The divisional returning officer. Senator COLBECK: So third parties are not permitted to advertise at a polling booth. GetUp, for example, couldn't be at a polling booth with electoral material. Mr Moriarty : That's right. CHAIR: But they could be 51 metres away. Senator COLBECK: But they could be 51 metres away if they decided that was a good idea. Mr Moriarty : They are then held by other legislation. For example, you'd be aware of the ban on corflutes. They wouldn't be able to put those up on any Stobie poles or public infrastructure. CHAIR: But they could stand and hand out information. It's a distance away from the public. Mr Moriarty : Yes. CHAIR: This is a very similar question to the truth-in-advertising one I had before, and I only ask because this happened at the 2025 election. What happens if you can't contact the publisher of the electoral material? I suppose it would be different here because they're all candidates and they're on the ballot paper, aren't they? So you do have the contact. Mr Moriarty : There are provisions in the legislation for the polling booth manager to remove it. CHAIR: So you've got removal powers in relation to electoral signage. Mr Moriarty : Yes. CHAIR: But you don't have removal powers in relation to breaches in truth of advertising. Ms McLay : We have the power to make a request. CHAIR: In truth of advertising? Ms McLay : In truth in advertising, a request can be made—not a direction. CHAIR: But, in signage, you can— Ms McLay : We can remove signage. CHAIR: If there's a 13th sign up, you can go take it down. Senator COLBECK: Within a 50-metre radius, you have the capacity to take an action. Mr Moriarty : It's important to recognise that it's only within that. Anything outside of the 50-metre radius is a matter for the local government. Ms McLay : People would be directed to local councils if they wanted a corflute in their council area removed and believed it breaches the legislation. Senator GROGAN: In this election, there was a change from Stobie poles, but people can put them on their private property, on their fence or whatever. Have you had any complaints regarding that or any feedback about that change? Ms McLay : I think people could also use a corflute if they were polling or campaigning directly in the area, and we did have some questions raised about— Senator GROGAN: On an A-frame or something? Ms McLay : Yes, that's right. We did have some questions directed to us. Whether they came in as formal complaints, I'm not sure. Mr Moriarty : We had a number of complaints on both situations. They can have an A-frame if they're within the vicinity and they're campaigning. But, in answer to your question, there were a number of complaints because we saw an increase of people placing these corflutes on their private property. Unfortunately, that's not in the legislation and we can't police that. They were informed to that end. Senator COLBECK: So there was a growth in complaints about people having signs on their private property. Mr Moriarty : I think it's more from confusion because, obviously, the context was a ban on corflutes when the reality is that it's a regulation of corflutes. We can't enforce on private property. The only caveat to that is that they're still restricted in size. Senator COLBECK: I was going to ask if local government has any restrictions with respect to signage on their properties. For example, I think—and it varies across local government areas in Tassie—it's about, say, 1.5 square metres. Yours is one. They would be restricted to having a sign within a certain period of election day on either side to a limited size. I'll say, for the purpose of the conversation, 1.5 metres. Do those sorts of restrictions exist within local government? Mr Moriarty : I believe they do. I'd have to double check, but, generally, in terms of being misleading and an advertisement, it follows through to local— Senator COLBECK: But the misleading element of it would come back to you, not to local government. Mr Moriarty : That's correct. Local government is only involved as far as it is removing signage from their infrastructure. Senator COLBECK: And whatever limitations there might be on private property. Mr Moriarty : That would come back to us as part of a complaint under the Local Government Election Act. Senator COLBECK: Okay. It's a bit wordy, but I think that helps. Thank you. CHAIR: We've taken a great deal of evidence in regard to intimidating and aggressive behaviour at polling booths in the 2025 election. Was there any evidence of that at your most recent state election? Ms McLay : I believe that SAPOL were asked to attend four or five polling booth locations. There were no significant incidents. There were no particularly aggressive incidents. I believe one of them involved a person who may have had some mental health issues kicking over cardboard screens and things in a polling booth. A candidate—an MP, in fact—was harassed by a person outside of a polling booth. I think there were just some other small things. Were there other ones that you're aware of, Dan? Mr Moriarty : I think they were very, very minor in nature, where SAPOL were called. They were not necessarily in relation to the election but just happened to be there at the time. Ms McLay : Most of them were in the vicinity of the polling booth, except for the one occasion where the gentleman entered the polling booth and was kicking things. CHAIR: Do you have a process of recording complaints received by the polling booth's returning officer? Do you have any data that you could share in relation to that—any complaints from voters on their way in about aggressive electioneering out the front? Do you have some of that data? Ms McLay : You've advised us that there were 323 complaints in total. I wonder whether you could provide us with a categorisation of that. There is a breakdown, which Dan has kindly put together for the purpose of today's meeting. One hundred and three of those were about the display of electoral advertisements—so the sorts of things that we've just been talking about; 73 were in respect of the publication of advertisements and notices, and that would be about authorisation or failure to authorise; 48, as we have said, were misleading advertising; 10 were in respect of the conduct of officers and scrutineers; eight were in reference to people canvassing near polling booths; seven were about how-to-vote cards; four were where the advocacy of forms of voting was inconsistent with the act—so I imagine that's encouraging people to do other than fully cast their preferential vote—four were interfering with political liberty; and four were publishing material to identify persons. There were six in total about artificially generated material, but they were under two different sections—one that is about the requirement to identify it having been artificially generated, and I think the other one is about the fact that a person's image may have been used without their consent. So there were three of each for that. Then there were three complaints about candidates not to take part in elections—you might need to explain this one, Dan. Mr Moriarty : That relates to the polling location and candidates being within six-metres of that polling location. Ms McLay : Two were offences relating to ballot papers; one was bribery; one was cards in polling booth; and one was the heading of the electoral advertisements. CHAIR: I think you said there were eight in regard to canvassing outside the booths where voters raised a complaint either directly with ECSA or the returning officer. Ms McLay : Yes. CHAIR: It's been suggested to us—it maybe not an issue with only eight complaints here—that there should be a code of conduct for canvassers from parties and third parties. Is that something that ECSA publish? Do you have anything like that? Mr Moriarty : We provide awareness training to the candidates on the behaviour expected of their party workers. CHAIR: You do. Mr Moriarty : There isn't a code of conduct or an official document, as such, outside of that briefing. CHAIR: Do you have material in regard to that expected behaviour. Is it like a slide of a PowerPoint? Mr Moriarty : Yes. We give an in-person briefing, and we give a briefing via Teams or whatever media, but that's also published on our website. So that's available. CHAIR: Are you able to provide— Ms McLay : That's included as part of the entire candidate briefing rather than as a second— CHAIR: But it is more to the candidates, not to the volunteers. You rely upon the candidates to then communicate that. Ms McLay : It is for the candidates to monitor their volunteers. Mr BURNELL: Is that compulsory for all candidates? Ms McLay : We can't mandate people's attendance at that, but it's offered to all candidates, and I think the participation is high. CHAIR: Could you provide the committee with a copy of that—of the pack but particularly in relation to that. Again, you still rely upon the candidates and the parties to relay that set of expectations to the volunteers. Just thinking out loud—third parties aren't a problem, because they're not allowed to canvass within 50 metres. Thanks for your attendance today. If you've been asked to provide additional information, would you please forward it to the secretariat by Friday 15 May. You'll be sent a copy of the transcript of your evidence and will have an opportunity to request corrections to any transcription errors. Thank you for your time again in what is a very busy period for ECSA. We really appreciate you appearing before the committee. Committee adjourned at 10:57