|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT DUNCAN
AG2002/6818
APPLICATION FOR CERTIFICATION
OF AGREEMENT
Application under section 170LK of the Act
by Suncorp/GIO for the certification of the
General Insurance Business Integration
Agreement 2002
SYDNEY
9.30 AM, THURSDAY, 27 FEBRUARY 2003
Continued from 26.2.02
PN2979
THE SENIOR DEPUTY PRESIDENT: Good morning everybody, I believe there is no alteration to appearances and the purpose of this part of our proceeding is for the evidence of Mr Kilpatrick to be taken. Good morning, Mr Kilpatrick.
PN2980
MR KILPATRICK: Good morning.
PN2981
THE SENIOR DEPUTY PRESIDENT: He is your witness.
PN2982
PN2983
MR HARMER: Mr Kilpatrick, could you please state to the Commission your full name?---Stephen John Kilpatrick.
PN2984
And your current residential address?---26 Alpha Avenue, Strowen, Christ Church, New Zealand.
PN2985
And your occupation?---Managing director or Election.com New Zealand.
PN2986
Mr Kilpatrick, for purposes of these proceedings have you prepared a statement?---Yes, I have.
PN2987
Do you have a copy of that statement with you?---I do.
PN2988
And can you confirm that the statement is true and correct in every respect?---Yes, I can.
PN2989
If the Commission pleases, I seek to tender the statement of Stephen Kilpatrick?
PN2990
THE SENIOR DEPUTY PRESIDENT: Any objection?
PN2991
MR PENNING: No objection.
PN2992
**** STEPHEN JOHN KILPATRICK XN MR HARMER
PN2993
MR HARMER: And Mr Kilpatrick, just for the record, you have present with you the statements prepared in this matter by the FSU?---Yes, I do.
PN2994
No further questions. Thank you, your Honour.
PN2995
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Penning?
PN2996
PN2997
MR PENNING: Mr Kilpatrick, could I take you to your statement and in paragraph 2 in the second sentence you say that the company Accent Computer Services Limited that you were previously the managing director of, had as its core business the development of software for local government? Do you see that?---Yes.
PN2998
And you give some examples of the software applications that were developed for local government including rates and water billing?---Yes.
PN2999
Do you see those?---Yes.
PN3000
And you say that there was one module that was developed as an election module for local government?---That's correct.
PN3001
Was there only one module that was developed in relation to elections?---At that time, yes.
PN3002
That is the time from 1995 to 2000 when you were managing director of that company?---That's correct.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3003
In the last sentence of paragraph 3 you say that Election.com began offering internet and phone ballots in 2000. Do you recall what month in 2000 - I am sorry in 2002. Do you recall what month in 2002 that commenced?---No, I don't.
PN3004
Was it in the latter half of the year?---I think it would have been in the earlier half of the year.
PN3005
You are not able to say when though, what month?---Not without referring to some records which I don't have here.
PN3006
All right. Could I take you to the fourth paragraph and there in general you refer to ballots and elections which have been conducted for local government, in the first part of the paragraph in any event. Could I ask you have any of the local government elections which are referred to in the first sentence of paragraph 4 been conducted by telephone ballot?---No, they have not.
PN3007
Have any of the local government elections referred to in that paragraph been conducted by internet ballot?---I'm sorry, I didn't catch that question?
PN3008
Have any of the local government elections referred to in the first sentence of paragraph 4 been conducted by internet ballot?---No, that's not allowed by law here.
PN3009
Is telephone balloting in local government elections allowed by law?---No.
PN3010
In the second part of paragraph 4 you give examples of ballots which have been conducted for the named private sector organisations; do you see that?---Yes, I do.
PN3011
Are all of those ballots, ballots which have been conducted in New Zealand?---The organisations are based in New Zealand but the internet voting can of course take place anywhere in the world.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3012
I see. Has any of the internet voting that has been conducted for the organisations that you have named been conducted in Australia?---I'm sorry, I'm just not too clear on the question. Are you asking were there voters based in Australia?
PN3013
Yes, I will put it that way, yes?---At the time we - at the time of casting a vote if it via fax or internet, we can't be sure where they are.
PN3014
I see, so a person casting an internet vote in that respect maybe anywhere and you have no way of identifying their location?---That's correct.
PN3015
The ballots themselves though are not based in Australia, they are not for an organisation that has a part of its operation in Australia?---No, they're not.
PN3016
Now, each of those ballots you have described as being either an internet ballot, postal ballot or a fax ballot, or a combination of one of those ballots, would that imply therefore that none of those ballots have been telephone ballots?---That's correct.
PN3017
And similarly none have been partial telephone ballots as opposed to a whole telephone ballot?---That's correct.
PN3018
Can I take you to paragraph 6 of your statement. You describe there that you had previously worked with Mr Richard Kidd on a ballot for the Commonwealth Bank of Australia?---Yes.
PN3019
Aside from that ballot when you had worked with Mr Kidd, had you previously worked with Mr Kidd on any other telephone ballot?---No.
PN3020
Had you previously worked with any other senior officer or employee of Secure Vote Pty Limited on any other telephone ballot?---No.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3021
Are you able to generally describe the contractual arrangement which Election.com Limited had with Secure Vote Pty Limited for the conduct of this Suncorp ballot?---Yes, we were requested by Secure Vote to provide the ability to - for voters to dial into our telephone voting system for - as the indication to take place and for votes to be recorded and results of that ballot to be reported.
PN3022
Yes, and I take it that there was a quotation to undertake that work?---Yes, there was.
PN3023
Aside from the quotation to undertake the work which I imagine was in writing and which I am not seeking to go to in any way, are there other contractual terms to the relationship and the services that would be provided?---There is documentation regarding the specifications required - functionality in other words.
PN3024
Are you able to say anything else about the contractual arrangements?---I think I've covered everything.
PN3025
Are there specific or written protocols as to the supply of information between your company and Secure Vote Pty Limited?---Sorry, are there what?
PN3026
Specific or written protocols or terms as to the supply of information from your company to Secure Vote Pty Limited?---There are standard reports which we provide in terms of the result - the rate of participation in a ballot, that sort of thing. We have a protocol whereby any system of information is always transferred in a digitally protected form - so password protected for instance.
PN3027
In paragraph 7 you refer to standard reporting procedures. Do you see that?---Yes.
PN3028
Could I say the way I read paragraph 7 however is that they would be reporting procedures which would be reported to your parent company, Election.com Inc?---That's correct.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3029
That doesn't read that those are standard reporting procedures that would apply in respect of your relationship with Secure Vote?---No, that is simply an in-house monthly reporting procedure back to head office.
PN3030
Yes. And is that the standard reporting procedure that you are referring to when I have previously asked if there are written protocols?---No, it's not.
PN3031
All right. Then I return to that previous question, in respect of your company's relationship with Secure Vote, are there specific written protocols as to the way in which material will or will not be provided?---I am sorry, the sound disappeared right at the beginning of that question.
PN3032
I am sorry. I return to the question I have asked several questions ago. In respect of your company's relationship with Secure Vote Pty Limited, are there specific written protocols as to the supply of information between the companies?---When we agree on the contract we spell out the sorts of reports that are required on a election by election basis. Generally they are all the same so I guess the answer is yes.
PN3033
I see. And to your knowledge would that documentation be in evidence anywhere in these proceedings? It is not annexed to your witness statement, you are aware of that?---Yes, I am.
PN3034
Yes. Are you familiar with any of the annexures to, for example, the witness statement of Mr Kidd?---No.
PN3035
You have not seen those annexures?---No.
PN3036
Have you seen Mr Kidd's witness statement?---No.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3037
All right. Thank you for that. Could you go to paragraph 10 of your statement?---Yes.
PN3038
Now, you say there that the information from Secure Vote was provided to your company in the form of five spreadsheets. Do you know why it was provided in the form of five spreadsheets?---No, I don't.
PN3039
Do you have any information as to the reasoning for a break down in that way?---It is not unusual for us to receive a roll like that in different parts. I don't know the specifics in this case.
PN3040
Did you make any inquiries as to why the information came in five separate spreadsheets?---No, we saw no reason to.
PN3041
And in general, what information was contained in the five spreadsheets?---Name and address and employee number.
PN3042
Would it be your view that there was a particular need for the duplication process because the information was received in five separate spreadsheets?---No, that's standard procedure.
PN3043
Is there a greater likelihood of duplication where information is received from five different sources?---I believe the source was the same for all five.
PN3044
Do you know that?---We received it from the same source.
PN3045
That is you received it from Secure Vote?---That's correct.
PN3046
In paragraph 12 you go on to describe the process of removing duplicates from the voter role?---Yes.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3047
And in the last sentence you say that:
PN3048
If we were then advised by Secure Vote of any duplicates we removed them from the list.
PN3049
Were you in fact advised of duplicates by Secure Vote?---Yes, we were.
PN3050
And how many names were duplicates?---I believe there would have been - I'm not sure on total but probably about 20, possibly more. I would really have to check the records to be more specific.
PN3051
All right. Could I take you to paragraph 15? There you describe the relationship in some respects which your company entered with Panztel Limited?---Yes.
PN3052
And that is a company based in - is it Taranga in New Zealand?---Tarongah.
PN3053
Is Panztel a separate and independent company from Election.com Limited?---Yes, it is.
PN3054
Is there any common share holding?---Between Election.com and Panztel?
PN3055
Yes?---No, there's not.
PN3056
Are there common directors?---No, there's not.
PN3057
And did your company enter a specific contractual relationship for this ballot only with Panztel or do you have some form of ongoing contractual relationship with that company?---We had an ongoing relationship with that company.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3058
And that is for the provision of a range of services, is it?---It's for the provision of telephone voting.
PN3059
And are there specific written protocols which apply in respect of the relationship between Panztel and Election.com as to the supply and flow of electronic data and information?---Yes, there is.
PN3060
And to your knowledge that material is not included in your witness statement anywhere?---No, it's not.
PN3061
To your knowledge that material is not included elsewhere in the material that is before the Industrial Relations Commission in this case?---No, it's not.
PN3062
In paragraph 18 you give a summary of the IVR interactive voice response system. Could I ask, in giving that summary, is your field of expertise in computer programming?---Yes, it is.
PN3063
And do you have a computer science qualification?---No, I don't.
PN3064
Do you have a comparable tertiary qualification?---No, I don't.
PN3065
You are an officer of Election.com Limited, you are not an officer or an employee in any respect of Panztel?---No, no.
PN3066
In giving evidence regarding the operation of Panztel's IVR system, are you essentially relying on what someone from Panztel has told you?---Yes.
PN3067
Does your company provide any form of consulting services to Panztel?---No.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3068
Could I take you to paragraph 23 of your statement in relation to the testing procedures undertaken before the commencement of the ballot, and towards the end of the first sentence there you make a summary reference to a report from Richard Steyn, and he says that all relevant programming ought to be available for independent scrutiny; you see that?---Yes, I do.
PN3069
Is it your evidence that you scrutinised the programming of Panztel?---I certainly tested it to make sure that it was doing what it was supposed to do.
PN3070
Yes. And that - - -?---If that is scrutinised, yes.
PN3071
That is the testing procedure that you describe in paragraphs 23 through to 27?---Yes.
PN3072
Aside from that testing, was there any form of scrutiny which you undertook of the programming of the IVR system?---The actual coding of the IVR system.
PN3073
Well, that is one example, yes?---No, I didn't.
PN3074
And similarly to your knowledge did Secure Vote scrutinise the programming of the IVR system by Panztel?---They scrutinised it to the similar extent that we scrutinised it, by making sure it did what it was supposed to do.
PN3075
Yes. You see the point that Mr Steyn made, which was that all relevant programming ought to be available for independent scrutiny?---Yes.
PN3076
Could I put to you that testing in the way that is described in paragraphs 23 to 27 is not the same as independent scrutiny of the programming of the IVR system?---The testing that occurs and is described in those paragraphs should, and did occur after the program.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3077
Do you agree with the proposition that the testing after the system has been programmed is not the same as independent scrutiny of the IVR programming?---No, I wouldn't agree with that.
PN3078
Well, your testing was done by making phone calls, wasn't it?---Yes, it was.
PN3079
You didn't read or review the programming data of Panztel?---That's correct. That's correct.
PN3080
And, similarly, to your knowledge, Secure Vote did not read or in any way review the programming data of the IVR system?---That's correct.
PN3081
In paragraph 25 you have described the process whereby you did a dummy run in some respects, and telephoned the IVR system, and then Panztel have forwarded to you a results file, comparing the steps that you had taken with the records that been recorded by Panztel; that is what paragraph 25 is doing, isn't it?---Yes, it is.
PN3082
But you did not subsequently load the test results into Election.com's Oracle computer system, did you?---No, we didn't.
PN3083
And, similarly, because the information was not loaded into the Oracle system it was not subsequently transferred to the Secure Vote system, was it?---There is no Secure Vote system.
PN3084
I see. The information is simply advised to Secure Vote by email spread sheet?---That's correct.
PN3085
Have you seen the second report of Richard Steyn?---Yes, I have.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3086
Do you have a copy of that with you?---Yes.
PN3087
Could I ask you to turn to that report, please. Could I ask you to turn to paragraph 15 of Mr Steyn's report?---Yes.
PN3088
And do you see the last sentence of that paragraph?---Yes, I see that.
PN3089
Do you agree that there was no testing of the data transfer between the Panztel and the Oracle systems?---At that point I do agree.
PN3090
Do you agree that technically there is no reason why former testing could not have occurred?---Yes, I agree. It could have occurred.
PN3091
Could I take you to paragraph 30 of your statement?---Yes.
PN3092
And there is again a reference to Mr Steyn's report where, and this is in respect of his first report, where he questions how many people sought to revise their vote; do you see that?---Yes, I do.
PN3093
And you state that the IVR system did not log or record that information, that is, people who sought to revise or change their vote?---Sorry, what was the question?
PN3094
You acknowledge in the last sentence that the IVR system did not record or log the numbers of persons who sought to revise or change their vote?---Yes, I acknowledge that.
PN3095
And technically there is no reason why that information could not have been recorded?---The programming hadn't been done to record that. That was a new feature.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3096
What it is now a new feature in the system?---It was - the ability to revise a vote was added for the Suncorp election, and that there was no change made to record the number of revised votes.
PN3097
You indicated that you would agree me, I believe, that that could have been done - that is a record or log of that activity could have been retained?---That's correct.
PN3098
And is it that a programming decision was made not to record that information?---No, it was never identified as a need.
PN3099
So it is not that a positive decision has been made not to record it, it is that that issue wasn't identified as being relevant or necessary?---Yes, it was never identified as being required.
PN3100
Could I take you to paragraph 32 of your statement and in the last sentence you say that your logs indicate:
PN3101
23 callers with consumer PINs attempted to re-access the Suncorp ballot.
PN3102
?---Yes.
PN3103
Is that actually your computer log or is it Panztel's computer log?---That's Panztel.
PN3104
So do you have that log when you refer to it as our log?---Yes, I do now.
PN3105
So those logs were provided to you - to your company from Panztel?---Yes.
PN3106
Have those logs been retained?---I believe so.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3107
So they are retained by your company?---They would not normally be retained. Because of the special circumstances with this ballot they are probably still retained.
PN3108
Is the answer you are giving there one of some uncertainty?---Yes, it is. I would need to confirm if they are available - they would not normally be available.
PN3109
To your knowledge have Panztel similarly retained the computer log?---I am sorry, which computer log?
PN3110
The logs indicating for example that 23 callers with consumer PINs attempted to re-access the Suncorp ballot?---Again, I believe because of the special nature of this particular ballot they probably have retained them but I would need to confirm.
PN3111
Would that be the case in respect of all the computer entries for this ballot, that Panztel has the capacity to retain that information?---It has the capacity but our normal operating procedure would be that they destroy those logs.
PN3112
Is that a contractual provision that such logs and records are required to be retained for a period of time and subsequently destroyed?---It is normally on a case by case basis.
PN3113
Well, in respect of this case is there any specific contractual provision?---To destroy the log?
PN3114
Well, two part question - one, to retain it for a period of time?---If they - they would - if they have not deleted it so far and I don't believe they have, as far as I'm aware, they will keep it until further instruction. But I do need to confirm if they have or have not deleted it.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3115
So at least they may have retained it and may still retain it?---Yes, indeed.
PN3116
I would like to ask you some further general questions in relation to the matters which you raise in paragraph 33 if I could? To your knowledge are there any laws which govern what your company can and cannot do with voting data that is generated in respect of certified agreement ballots in Australia?---Sorry, in respect of?
PN3117
In respect of a certified agreement ballot in Australia?---No, I'm not aware.
PN3118
Could you contrast that with laws that apply in relation to local government elections with which you are familiar in New Zealand?---Yes, I can.
PN3119
So there is an extensive body of legislation in case law in relation to the conduct of local government elections?---Yes, there is, it is heavily legislated.
PN3120
And as you understand it there are no regulations in respect of certified agreement ballots, as in this case?---I wouldn't say that. I'm just saying I'm not familiar with them. I would expect however there to be some provision for privacy for instance.
PN3121
In what respect?---Well, the normal privacy laws I would expect to apply in Australia as they do in New Zealand and many other countries without being expert on them in Australia.
PN3122
In the experience you have had now in conducting the ballots for the Commonwealth Bank and for Suncorp, have you had cause to look at that issue of, for example, data privacy?---No, we have not.
PN3123
Am I correct in saying therefore that the arrangements in relation to the conduct of certified agreement ballots as you would see it are substantially if not totally governed by the commercial arrangements between respective clients?---I am sorry, can you repeat that?
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3124
As you would understand it, the conduct of certified agreement ballots is substantially governed by the commercial arrangements between clients?---I would expect there would be some legislation or regulations in place that governed those ballots. Whether there are or not I am not aware of.
PN3125
Was that an issue which you discussed in any way with Mr Kidd in undertaking the - or in agreeing to undertake the work in connection with the Suncorp ballot?---It was covered in the - to the extent of the sort of information we were providing at the conclusion of the ballot. By that I refer to the amount of the results which would go back to Secure Vote.
PN3126
And is that arrangement in respect of the information relating to the ballot that would go back to the Secure Vote recorded in writing prior to the undertaking of the ballot?---Yes, and we were agreeing on the services we were to provide and the sorts of information we would provide at the conclusion of the ballot. So for instance we would provide the - a list of PINs that were consumed, obviously the results - the number for, the number against, the time of day votes get cast because that can be quite interesting just from a flow point of view and privacy matters.
PN3127
Well, let us look at that issue about the number of votes that are cast on a particular day, if we could, and you refer to that in part, don't you, at paragraph 38 of your statement?---Yes, I do.
PN3128
Am I correct in summarising what you are saying the first sentence as being that Panztel informed your company on a daily basis during the course of the ballot of the number of PINs which had been consumed, and therefore the number of persons who had voted?---That's correct.
PN3129
And as well as the total number of PINs consumed, did Panztel also provide information to your company on the PIN numbers which had been consumed?---Not on a daily basis.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3130
On some other form of basis?---At the conclusion of the election we required from them to know what - to produce what we called a marked roll, so we can indicate those PINs that had been consumed.
PN3131
So that indicates the people who have voted?---It does, and obviously that should reconcile back to the number of votes that we've received.
PN3132
The information which you were provided with by Panztel on a daily basis, as to the number of persons voting, was that information in turn provided to Secure Vote?---Yes, it was.
PN3133
And, to your knowledge, was that information in turn provided by Secure Vote to Suncorp?---I believe it was, yes.
PN3134
On a daily basis?---I can't really answer that. I don't know what Secure Vote passed back to Suncorp.
PN3135
The relationship and the arrangement was certainly that Panztel would provide that information to you on a daily basis, and your company would in turn provide that information to Secure Vote on a daily basis?---That's correct.
PN3136
You are aware that this was a contested ballot in some respects? That is, that there were active arguments for a yes vote and for a no vote?---We weren't aware of any different circumstances regarding this ballot as opposed to any other ballots. They are all contested.
PN3137
Well, could I put it to you that there is some contrast on that point between the CBA ballot, for example, where both the employer and the union representing employees supported the, and urged a vote yes, for the certified agreement?---We weren't privy to that sort of information at all. We don't even know what they were voting for.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3138
Well, could I ask you to consider this question then, perhaps theoretically? I might describe that process as a consent ballot in certain respects, and could I put it to you that, again not based on your knowledge but in a theoretical sense, that this vote at Suncorp was a contested vote. Would you just take that as the situation for the purpose of dealing with the question? Do you consider it usual for one party to a ballot to be advised of the number of persons who have voted in a ballot on a daily basis, where that is a ballot over a period of time, that is, over seven days?---We make that information available to all our clients. I'm not sure if that answers your question.
PN3139
Well, could I ask you this? If you were conducting a ballot for the Canterbury Chamber of Commerce - - -?---Yes.
PN3140
- - - and there were a number of people who were standing for the board of directors, as indeed there would be?---Yes.
PN3141
If that information was to be provided, that is, the number of persons who were voting, would you see that as appropriate information to be provided to some directors but not to other directors who were standing for the board?
PN3142
MR HARMER: Objection, your Honour. Apart from the theoretical basis for the question, it is not even a relevant theoretical basis, because there is no analogy to this situation at all.
PN3143
THE SENIOR DEPUTY PRESIDENT: Oh, I will permit the question. I don't - the relevancy is stretched, I accept that?---Can you repeat the question, please?
PN3144
MR PENNING: Yes, Mr Kilpatrick. Do you understand the theoretical construct or scenario I have proposed?---Yes, I do.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3145
Would you consider that it would be usual to advise some of the persons who are - in a ballot, that is, who are seeking to be elected, of the daily results of a ballot, but not to advise other persons?---It would really depend on the rules that govern the particular election. The - in our situations where we are conducting elections on behalf of clients, and we are required to provide that information, it goes back to the client. What they do with it is up to them.
PN3146
Yes?---For instance, for all I know, some directors of the Chamber of Commerce may receive the information, some may not.
PN3147
Yes, I understand that, yes. Thank you. Do you have knowledge of the number of employees at Panztel who worked on this contract with you?---Sorry, do I know the number of employees?
PN3148
Yes?---I know there was one primary employee that I liaised with.
PN3149
And was that person referred to as the data base administrator?---No.
PN3150
I see. There is a data base administrator at - or a person referred to by that title - at your company?---Yes, there is.
PN3151
What was the position of the person you had primary contact with at Panztel?---Operations director.
PN3152
And do you have any knowledge of the people who worked at Panztel on this contract, aside from the operations director?---No, I don't.
PN3153
Are you able to say what the name of the operations director at Panztel is?---Yes, I can.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3154
Who is that?---David Ellis.
PN3155
Could I take you to the first two sentences of paragraph 40 of your statement?---Yes.
PN3156
You refer there to the work done at Election.com by the data base administrator; who is that person?---That person is Wynton Bell, W-y-n-t-o-n Bell.
PN3157
And you state that his use of the data base is not logged?---That's correct.
PN3158
Is it the case that programming could have been established such that the data base administrator's use of the data base was logged?---Yes, it could be.
PN3159
Did Wynton Bell have a capacity to delegate work or duties of the data base administrator in any respect?---Sorry, did Panztel have the ability to?
PN3160
No, did Wynton Bell, I am sorry, your data base administrator, have the capacity to delegate his role in any respect?---He has the capacity, yes.
PN3161
Have you knowledge as to whether that delegation was exercised?---I have the knowledge and I know it was not.
PN3162
Could I take you to paragraph 41. This is possibly a topic that we have covered earlier, but you say there in the second sentence that your usual practice is to destroy data logs identifying characteristics of voters after the conclusion of a ballot, but do I understand that such data log has not been destroyed in respect of this ballot?---Yes. The actual data logs, that's correct, when we can re-check and reconcile consumer PINs, for instance, retabulate the ballots. That's correct.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3163
And that data log can allow the identification of persons who voted in the ballot?---Only by matching dates and times. Date and time that a PIN was consumed with the date and time the vote was cast.
PN3164
Yes. And does that data also include - the data log include information as to how a person voted?---The date and time associated with a vote does that. The vote is either a one or a two.
PN3165
Yes. And that records a yes or a not?---That's right. One means yes, two means no.
PN3166
Now, Election.com retained that information, has that information been on-forwarded to Secure Vote?---I'm sorry which information are you specifically referring to now?
PN3167
The data log information that you have referred to in paragraph 41?---No, they have not.
PN3168
Is that same information retained by Panztel?---This is the area where I'm not sure what they've retained. We certainly still haven't.
PN3169
I see. So that allows a reconstruction to be undertaken such as to show the person who voted and how the person voted?---It shows how a PIN, the date and time the PIN was consumed and the date and time a vote was cast. So we see when a PIN was consumed. It doesn't give us an individual's name information.
PN3170
But you have separate information and a separate source of information which correlates employee names and PIN numbers?---Yes, a separate matter would have to be performed.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3171
Yes. Could I take you back to paragraph 33 of your statement and ask you certain questions in relation to the company organisational structure of Election.com?---Yes.
PN3172
Is Election.com Limited a subsidiary of Election.com Inc?---Yes, it is.
PN3173
And is it a fully owned subsidiary of that company?---Yes, it is.
PN3174
And Election.com Inc is an American company based in New York?---Yes. Sorry, which paragraph are you on?
PN3175
Well, I mean in a general sense both paragraph 33 and paragraph 2. Are you familiar with a gentleman Mr Frank Nesci, N-e-s-c-i?---Yes, I am.
PN3176
And is Mr Nesci a managing director of Election.com Inc?---No, he's not.
PN3177
Does he hold a position within that company?---No, he doesn't.
PN3178
Does he hold a position within Election.com?---No, he doesn't.
PN3179
Well, what capacity do you say you know him? What is his position as you understand it?---He's managing director of Secure Vote.
PN3180
I don't have this to show to you now, but if I were to say that I have in front of me a document from the Australian Securities and Investments Commission signed by Mr Frank Nesci in a capacity as managing director of Election.com Pty Limited. That document is dated 4 June 2002. Would that be your understanding of what Mr Nesci's position was at that time?---Yes.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3181
And Mr Nesci is now an officer of Secure Vote?---I understand he is managing director.
PN3182
And that was as of December or January this year - December 2002 or January 2003, is that your understanding?---I'm not sure exactly when it took place. I believe, I thought it was about August/September 2002.
PN3183
Is it your understanding that Mr Nesci also holds a position as managing director of Election.com Pty Limited?---I'm not sure of the details. He may have but that company was acquired, now whether there was a share level transaction I don't know. He may have retained that position.
PN3184
Election.com Limited has only been operating a relatively - I withdraw that. Do you have an understanding as to how long Election.com Inc has been operating?---Yes, I do.
PN3185
And from when is that?---I believe it was 1999.
PN3186
When you were asked to perform, or offered to perform the position as managing director of Election.com Limited were you provided with a briefing or understanding of the relationship between that company and Election.com Inc?---Yes, I was.
PN3187
Can you say what that involved generally?---That we would, that those - that communication was by way of a sale purchase agreement for my business. So it was generally to continue carrying on business as we were.
PN3188
Yes, as well as being the managing director of Accent Computer Services Limited you were also the owner of that business?---Yes, I was 50 per cent owner.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3189
You have said earlier in your evidence that you report regularly to the parent company, Election.com Inc. Are you able to say what the financial reporting arrangement is between Election.com and Election.com Inc?---Yes, every month we are required to send up our cash position, new contracts signed and it was via that process that the Secure Vote deal was notified to them - the Suncorp Secure Vote deal. We report to them annual financial reports which are audited.
PN3190
THE SENIOR DEPUTY PRESIDENT: Where is this going, Mr Penning?
PN3191
MR PENNING: It is going to an issue, your Honour, that was raised in earlier evidence in respect of one of the employee witnesses, concerning the relationship between Election.com, Secure Vote and Election.com Inc.
PN3192
THE SENIOR DEPUTY PRESIDENT: What has that got to do with the matter in front of me?
PN3193
MR PENNING: Your Honour, without jumping to the point now, there is a submission that - - -
PN3194
THE SENIOR DEPUTY PRESIDENT: You may have to.
PN3195
MR PENNING: - - - we would make in relation to independence.
PN3196
THE SENIOR DEPUTY PRESIDENT: Well, you are not going anywhere as far as I am concerned. Unless you can get to the point I think I will have to terminate this line of questioning.
PN3197
MR PENNING: Yes, your Honour, I understand.
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3198
Do you have any knowledge of the investment in Election.com Inc or ownership of Election.com Inc by two organisations, JP Morgan first of all and second, Chase Manhattan Bank?---I'm not aware of either of those as shareholders.
PN3199
Are you aware that both JP Morgan and Chase Manhattan Bank were involved in the start up of Election.com Inc in 1999?---No, I was not.
PN3200
Do you have any knowledge as to investments which those two companies continue to have in Election.com Inc?---No, I'm not.
PN3201
Your Honour, I appreciate your perseverance on that point.
PN3202
THE SENIOR DEPUTY PRESIDENT: You have finished it, have you?
PN3203
MR PENNING: Mr Kilpatrick, you have given information generally about discussions that you had with Mr Kidd but is it the case that there were no specific discussions bout the context of the Suncorp ballot in respect of what was being voted upon and what the issues in the ballot were?---That's correct, we didn't discuss the specifics. To this day I still don't know what was actually being voted on.
PN3204
Thank you, your Honour, no further questions.
PN3205
THE SENIOR DEPUTY PRESIDENT: Just before Mr Harmer has re-examination, I have two questions, Mr Kilpatrick. The first concerns paragraph 24 of your statement. What happens to the authentic employee numbers and PINs used to test the system on completion of the test?---What happens, your Honour, is after testing the system goes into what we call lock-down which means if anyone calls the advertised free phone numbers they get a message saying the ballot is not open and when it goes into that state the database is cleared out. It all goes - - -
**** STEPHEN JOHN KILPATRICK XXN MR PENNING
PN3206
I see - which would remove any trace of your test?---Indeed.
PN3207
I see. The second one is related to this clause 33 which is has received a fair bit of attention - the piecing together concept. I would like you to be specific to the extent of your knowledge. Can you say directly that Election.com did not piece together the available information to determine how employees voted?---Yes, I can be very specific - we did not.
PN3208
PN3209
MR HARMER: Thank you, your Honour.
PN3210
Mr Kilpatrick, you were asked some questions relating to paragraph 3 of your statement just relating to the commencement of Election.com to offer internet and phone ballots in 2002. Can I just ask you first of all in relation to Election.com and then yourself personally, how many electronic ballots has Election.com been involved in to your knowledge?---Election.com in New Zealand?
PN3211
Yes?---We have run probably seven internet based ballots and many paper based ballots.
PN3212
And in terms of phone based ballots?---Three.
PN3213
And yourself personally?---I am involved as a - at a management level - - -
PN3214
Yes?--- - - - so I've been involved with all of them.
**** STEPHEN JOHN KILPATRICK RXN MR HARMER
PN3215
And prior to coming to Election.com, did you have any personal experience with electronic ballots?---I was involved at a very early stage of my career, some 23 years ago, programming an electronic electoral roll for the Dunedin City Council.
PN3216
Okay, thank you. In relation to paragraph 23 of your statement you were asked some questions about the testing which you undertook of the actual functionality of the programming set up by Panztel. Could you provide the Commission with your view of the necessity after that testing of functionality for any independent scrutiny of the actual programming undertaken by Panztel?---Yes. I wonder if I could have the camera adjusted?
PN3217
I think most people prefer not to see, Mr Kilpatrick?---The view is that looking at the programming code it is the results that the code produces that is relevant. We aren't interested in what programming language they used. They could have used C or Delphi or whatever they like provided that the thing produces - records the votes and provides the results in a useable format which is what we are interested in. And the fact that a doubt with consumer PINs and people trying to vote again, people entering invalid votes then it would loop three times and then refer people back to the help desk in a user friendly manner. But all that sort of functionality was then provided by Panztel, that is what we were testing - that is what we were concerned with.
PN3218
Okay, thank you. In relation to paragraph 33 you were asked some questions about the regularity requirements governing certified agreement ballots in Australia. Do I understand correctly that that was an aspect of the equation that Secure Vote dealt with?---Yes, it is.
PN3219
And in relation to paragraph 40 of your statement you were asked questions as to whether the use of the database by Wynton Bell, the database administrator, was logged in any way. Could you just tell me this, would that activity be logged for any ballots conducted for any of your other private clients?---No, it would not.
PN3220
Is that activity that is logged in the case of council elections in New Zealand?---No, it's not.
**** STEPHEN JOHN KILPATRICK RXN MR HARMER
PN3221
Could you tell me this, if this was a paper ballot as opposed to electronic ballot would there be any means of logging contact with the data involved in the paper ballot?---It would be conducted in exactly the same way.
PN3222
Okay, thank you. Thank you, your Honour, no further questions.
PN3223
PN3224
THE SENIOR DEPUTY PRESIDENT: I will adjourn these proceedings for 20 minutes. I will adjourn until 20 past 11 in the other court room.
SHORT ADJOURNMENT [10.58am]
RESUMED [11.47am]
PN3225
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Harmer?
PN3226
MR HARMER: If the Commission pleases, thank you for that time to transition. During the course of the adjournment the parties have taken the opportunity to have some discussions concerning the program for the residual of the case and I would just seek the indulgence of the Commission to provide an update on the parties' views as to where things should go. Your Honour, for the remainder of today there are two additional witnesses, Mr Richard Kidd and Mr Ian Parker both of whom go to aspects of the ballot process and we are confident that will finish that aspect of the evidence today.
PN3227
Currently proposed for Monday, 3 March would be Leigh Kearney, Kim Jeffcoat and Helen Davis and again both parties are confident that we will get through those witnesses on Monday and then 10 March would be utilised for submissions with the benefit of the transcript as discussed yesterday. Your Honour, there were two outstanding matters. One was the tender of the Commonwealth Bank material. There have been discussions between the parties in relation to that matter and that is going to be dealt with on Monday next week. The second, your Honour, was the 170XF application.
PN3228
THE SENIOR DEPUTY PRESIDENT: Yes, which you raised yesterday.
PN3229
MR HARMER: Yes, your Honour, and there have been discussions between the parties with a view to resolving that issue, if I can put it that way. And the union has undertaken to come back to the companies tomorrow in relation to some aspects of those discussions. Again we seek the indulgence of the Commission in not formally calling that matter now until Monday with a view to hopefully having an agreed position put.
PN3230
THE SENIOR DEPUTY PRESIDENT: I see.
PN3231
MR HARMER: So if that is convenient to the Commission it is the position reached by the parties.
PN3232
THE SENIOR DEPUTY PRESIDENT: Yes, well that is all in accordance with your position, Mr Penning?
PN3233
MR PENNING: Yes, it is your Honour, I can confirm those things.
PN3234
THE SENIOR DEPUTY PRESIDENT: That being the case I will certainly adopt that course.
PN3235
MR HARMER: Thank you, your Honour. The only other thing I should mention and perhaps this is something more that Mr Penning will want to address. There is a video annexed to the statement of Helen Davis and again by consent of the parties and subject to the convenience of the Commission it is sought by the union to have that video played during the course of proceedings on Monday and to stop it at various points and actually cross-examine on the video presentation. It is of one of the information sessions, your Honour. We certainly consent to that course, again subject to the convenience of the Commission. So if the Commission pleases and subject to technology being so available, and if not I am sure the parties can make it available we would like to pursue that course.
PN3236
THE SENIOR DEPUTY PRESIDENT: Very well, I don't think that will present any difficulty for the Commission to accommodate the technology.
PN3237
MR HARMER: Thank you, your Honour.
PN3238
THE SENIOR DEPUTY PRESIDENT: It may mean we are in an unusual room or something, but it can be done.
PN3239
MR PENNING: Yes, your Honour, I think the only technical requirement aside from the video player and tv would be a remote control which allows the pausing of the video. I don't know to what extent that is high technology or not.
PN3240
THE SENIOR DEPUTY PRESIDENT: I am just wondering who will have the control of the - - -
PN3241
MR HARMER: Well, we will jump in first and grab it. I am sure Ms Davis would go well in fast forward, your Honour.
PN3242
THE SENIOR DEPUTY PRESIDENT: As long as no-one asks us to set the time on the video we should be fine I think.
PN3243
MR HARMER: Yes. Your Honour, without further ado perhaps I will call on our next witness then which is Mr Richard Kidd.
PN3244
PN3245
MR HARMER: Mr Kidd, could you please state for the Commission your full name?---My full name is Richard Lloyd Raymond Kidd.
PN3246
And your current residential address?---Is 108 Williamson Road, Morayfield in Queensland.
PN3247
And your occupation please?---My occupation is general manager of Secure Vote, general manager Election Secure Vote.
PN3248
And for the purposes of these proceedings have you prepared a statement?---Indeed I have.
PN3249
And do you have a copy of that statement with you?---Yes, I do.
PN3250
And do you have any corrections to make to the statement as filed in the Commission?---Yes, I would like to be able to tender some of those if possible.
PN3251
Would you be able to take the Commission through any corrections that you have?---Okay, then. The very first one, your Honour, is in annexure 1, it is on the second page of annexure 1, there is a typo there.
PN3252
THE SENIOR DEPUTY PRESIDENT: Of course the annexures are in a special book aren't they?---Yes, they are in - I thought you may have one like this.
PN3253
Yes. Take me there, Mr Kidd?---Okay, page 2 there in the middle of the page 1993 should be 1995. That is a mistake on my part. Turning to the statement itself on page 8, page 8 of my statement in paragraph 35 I would like to add a few words there. This is what I want to add: after the word "employees" in the first line I want to add, "Listed on the database." So the wording will be, "The instruction sheets were mailed to employees listed on the database." Is that okay?
**** RICHARD LLOYD RAYMOND KIDD XN MR HARMER
Are you right with that one? Now, since I lodged my statement originally two more pieces of unclaimed mail have come back, two more instruction sheets have been returned unclaimed. So on page 13, on page 13 and in paragraph 60, 6, 0, I think it is in the third sentence it says, "Indeed it transpired that ultimately there were only eight." Well now there are 10, two more have filtered through Australia Post system since this was sent down here. And the same thing will apply on page 26. Page 26 of my statement in paragraph 127 in that first line again it says, "It transpired that there were only eight," where in fact there are now 10.
PN3254
MR HARMER: Thank you?---Page 14, paragraph 66 in the light of Mr Steyn's statement and other reported information, in the second sentence there I say, "There were no instances of attempted multiple voting." What I would like to say there is that, "There were no instances of multiple voting," delete the word attempted.
PN3255
Thank you?---Yes, delete the word attempted. Page 17, page 17 paragraph 77 again there was not a lot of time to do all this, get the statement through there were strict time constraints and in the first - sorry, the second sentence of paragraph 77 I want another word inserted there, "This information is not readily," the word readily, "available to me." And similarly I would like to add another word at the end of the next sentence, after the word "together" I would like to add the word "electronically." So those two sentences - - -
PN3256
MR PENNING: Sorry, your Honour. Sorry, Mr Kidd, to interrupt, would you mind going back to the amendment that you were making to paragraph 77?---77?
PN3257
Yes?---Yes. Both in 77.
PN3258
Yes, the first one then?---The second sentence?
**** RICHARD LLOYD RAYMOND KIDD XN MR HARMER
PN3259
Yes?---"Information is not readily," r-e-a-d-i-l-y, "readily available to me." And then the next sentence, the third sentence I would like to add the word "electronically" at the end of the existing sentence after the word "together." So it will say, "This pieces information together electronically." Now, the same corrections, additions are also relevant at page 24. Page 24 in paragraph 114, this time in 114 it is in the third sentence, "This information is not readily available to me." Not readily available. And then in the following sentence in 114 at the end of that sentence after the word "together" add "electronically" again. Page 24 paragraph 116 there is a heading referred to there. It says, "The integrity of the voting system," the actual text should be, the heading has been inappropriately put here, "The integrity of the voting system," the word voting should come out. It is just, "The integrity of the system that is recording the vote." So delete the word "voting." That is a misquotation. Page 25 paragraph 117 it should read, "As set out in paragraphs," plural, "paragraphs 75 and 113." So, "As set out in paragraphs," plural, "75 and 113. And finally, your Honour, page 31, I am just finding it myself. Page 31 in paragraph 153 it is in the third sentence the one commencing with "However," the word is inquiries there that I am looking at. It says, "Suncorp GIO ballot had been conducted as a declaration postal ballot. We would have made enquiries," it said, it should be enquirers, e-n-q-u-i-r-e-r-s, not enquiries, enquirers. And that is all I have, your Honour.
PN3260
MR HARMER: Okay, thank you for that. And having made those corrections are you satisfied that the statement is true and correct in every respect?---Yes, I am.
PN3261
If the Commission pleases, could I seek to tender the statement of Richard Kidd?
PN3262
THE SENIOR DEPUTY PRESIDENT: Yes, any objection?
PN3263
MR PENNING: No objection.
**** RICHARD LLOYD RAYMOND KIDD XN MR HARMER
PN3264
PN3265
MR HARMER: Thank you, your Honour.
PN3266
Mr Kidd, could I just ask you to assist the Commission further by way of explanation, by way of one of the changes you have made. Could I take you to page 17 of your statement at paragraph 77?---Right. In the haste to prepare this thing, I must admit - of course, I have got the reports from the ballot, which indicate PINs consumed. I have an electronic version, also, a paper version of these. PINs consumed, PINs not consumed, and also a vote tally that we call it. The report that shows PINs consumed shows a time and date stamp against those. The list of unconsumed PINs is merely that. It is just a list of numbers of PINS that were not utilised by the employees, and the other report, the vote tally I call it, is a list which shows, in a jumbled time and date stamp fashion - there is no - it is not listed in time and date order - and it also shows votes in favour or in accepting the agreement, enterprise agreement, as all the ones are tallied initially in the report, follows by all the twos, those rejecting. As I said, though, that this particular report doesn't have the time and date stamp in any sequence. It's just a scrambled thing, so it is not readily possible to manually match up time and date stamps, nor is it readily possible to try and tie that back to the basic listing that I had from the outset, which was a record of employee addresses, their names, and of course their employee numbers, and a PIN.
PN3267
So just to clarify, where you say the information is not readily available to you - - -?---Yes.
**** RICHARD LLOYD RAYMOND KIDD XN MR HARMER
PN3268
- - - it is the case that through records available within your own organisation, combined with the data received from Election.com, you could in fact manually, clerically compile who voted which way; is that what you are saying?---I think it's just about impossible. It would be a painstaking, inexorable, clerical task to try and match this information. It's a bit like even on a Sunday morning you're trying to check your lotto, if you put in your quick pick it's difficult enough just to try and match that up with the newspaper report of the results, let alone going through 2614 items just to try and match a date and time stamp, and then try and match that manually back to another list of 1815 people, to try and find the PIN. A very difficult task, and I'm not about to perform it anyway. I have no interest in the way people have voted. The voters voted a sacrosanct thing.
PN3269
And so that is a manual task you have not performed?---Absolutely.
PN3270
And you are saying that Election.com could perform that task electronically?---They can perform it electronically, I understand.
PN3271
Do you know if they performed that task?---I don't believe they would have performed that task.
PN3272
And has any of the rule data that you are referring to, from which you could compile the outcome manually and clerically, has that been provided to Suncorp?---No, it has not. Nor has it been provided to any other party. It remains - I have the hard copy data myself, as well as an electronic version, which I do nothing with, and Election.com in New Zealand have electronic data, and that is only available to people in Election.com in New Zealand, Stephen Kilpatrick and a fellow called Wynton Bell. No one else has that data, and no one else is going to get it either.
PN3273
All right. Thank you, your Honour. No further questions.
PN3274
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3275
MR PENNING: Mr Kidd, in paragraphs 1 and 2 you have given a brief outline of your background, and the position which you hold. Could I ask, do you have or claim to have an expertise in computer science?---No, I do not.
PN3276
Do you have a tertiary qualification in computer science or a computer related discipline?---No, I do not. I have a Bachelor of Arts double major in psychology. And when I did it there weren't too many computers even around.
PN3277
You have not subsequently, after doing your double major in psychology, obtained any computer qualifications?---No, I have not.
PN3278
And you don't present to this Commission as having an expertise in computer or technical computer matters?---No, I do not.
PN3279
Could I take you to paragraph 4. There you have outlined the background which you have had, particularly in your work in the Commonwealth Electoral Office and also as Director of Industrial Elections in the Australian Electoral Commission. In the last sentence of that paragraph you say that as Director of Industrial Relations - - -?---Elections.
PN3280
My apologies. I withdraw that.
PN3281
As Director of Industrial Elections I developed state procedures for the conduct and pricing of work place certified agreement ballots, and conducted and managed major work place agreements.
PN3282
?---Yes, I did.
PN3283
Yes. What you are saying there is that in that capacity as an officer of the Australian Electoral Commission you developed the procedures; that is right?---At the state level, yes.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3284
Right. And were there then, subsequently to you developing the procedures, written procedures that were adopted by the Australian Electoral Commission, albeit at the state level?---The state procedures were used within Queensland and subsequently - in fact, after I left the public service they continued development of procedures in certified agreements with a working party group, and I understand that they now have a national manual, though I've not seen the manual. So it was an out-growth of my original work, and then, as I said, there was further development done within the organisation and they produced a document, I understand.
PN3285
So as at the present time, do you have an understanding of what the manual is, or what the procedures are within the Australian Electoral Commission for the conduct of certified agreement ballots?---I haven't seen their manual, but I can envisage the basis of the information that would be contained in that document, but I've never seen it.
PN3286
And to your knowledge is that manual something that is regarded by the Australian Electoral Commission as applying national?---I guess they would hope that it would be applied nationally.
PN3287
Right. To your knowledge it is not something, although it may have grown out of a particular state, that is said to be limited to one state only?---At the time, yes.
PN3288
Yes. Do you understand whether the position is currently that that manual has national or federal application?---I can only presume that it has national application. I mean, I haven't seen the - I never saw the finished product.
PN3289
Yes?---I left the public service before it was completed.
PN3290
Right. And do you have any understanding of what the - in a formal sense, the status of that manual is, in terms of the procedures adopted by the Australian Electoral Commission?---I believe it's an in-house document.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3291
Do you have any other knowledge of what the status of that manual is?---No, I do not.
PN3292
Does your company, or the company that you are the general manager of, Secure Vote, have a document which is comparable to the manual that you have described of the Australian Electoral Commission?---The information would largely be contained in files, rather than in a precise procedural document. So I conduct the great bulk of the elections in the organisation, and any other elections that are conducted by returning officers, then invariably they're ex-AEC people, they do so under my guidance, and I monitor any activities that would be carried out by other people. Otherwise I conduct the great bulk of the elections myself, so I rely on my best practice from the Australian Electoral Commission, plus also of a knowledge that I built up over many years.
PN3293
Does Secure Vote have a manual which is any way comparable to the manual which you have described of the Australian Electoral Commission?---No, it does not.
PN3294
The second issue which you have described in the last sentence of paragraph 4 relates to procedures that were developed for the pricing of ballots for work place certified agreements. Are you able to describe what the pricing practice was at that time of the Australian Electoral Commission for conducting certified agreement ballots?---I'm not sure that I should respond. I mean, essentially they just - - -
PN3295
Well, I am not - well, I appreciate the concern you are potentially raising. I am not asking for any description of pricing for any particular matter. I am not asking you to in some way describe something which would be commercially confidential to a particular client?---Well, essentially I think they used to seek their costs, but they would also have a margin.
PN3296
Do you have knowledge of what the pricing structure and arrangements are currently for the Australian Electoral Commission to conduct certified agreement ballots?---No, I do not.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3297
Is Secure Vote able to price the conduct of certified agreement ballots at a lower rate than the Australian Electoral Commission?---I don't know to tell you the truth. I don't know how we compare these days. What I do understand is that perhaps the ACE have now a policy that where more than one organisation tenders they may no longer go into the race but I'm not absolutely clear on that. I only heard about that through some of my old colleagues in the Australian Electoral Commission. I can't be sure that that's correct.
PN3298
Are you aware of whether the Australian Electoral Commission was invited to tender for the Suncorp ballot?---No, I am not - I'm not aware.
PN3299
Are you aware of whether any other company was invited to tender for this Suncorp ballot?---I'm not, I'm not aware.
PN3300
At the end of paragraph 5 it said that you also conducted other certified agreement ballots on behalf of Suncorp, that is - - -?---Yes, I have.
PN3301
- - - in addition to the ballot that is the subject of the current proceedings?---Correct.
PN3302
Can you say which ballots they were?---I can't recall them by title but I think there are four of them and they would be a mixture of postal and attendance ballots - or largely postal.
PN3303
I am sorry, I missed that?---I said I think that predominantly the first one may have been attendance and postal, I think we ran a couple of postals and there was another attendance, so there is a bit of a mixture there. This is the first electronic one.
PN3304
By attendance you mean that people go to a particular location or locations and - - -?---Work - yes, work place location.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3305
And manually exercise their vote there?---There would be a voters roll and there would be a formal process much like in a polling place - - -
PN3306
Yes?--- - - - in a government election.
PN3307
All right. None of the previous four ballots for Suncorp had involved telephone voting?---That's correct.
PN3308
None have involved internet voting or facsimile voting?---No, that's correct.
PN3309
And those which involved paper voting or attendance voting there was no combination of the telephone voting in those ballots?---No, there wasn't, there was not.
PN3310
In paragraph 6 you referred to the ballot that you were involved in conducting of the 2001 NRMA Board of Directors election?---Yes, I was the returning officer for that election.
PN3311
Was that a telephone ballot?---That was a - what we then called a hybrid ballot, then Election.com and it was a postal and also internet ballot so people had the opportunity of voting either way. The material was sent out to the 1933 - 420 members and they had, therefore had an opportunity to vote by post or they were provided with PIN information that they could also vote electronically on the internet and it was required - whether you were a postal vote you still had to authenticate using a member number. When you voted on the internet you authenticated using your member number and your PIN.
PN3312
That was not in any respect a telephone ballot?---It's an electronic ballot, very similar.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3313
It was not a telephone ballot?---It was not a telephone ballot.
PN3314
You go on in the first sentence of paragraph 6 to describe additional certified agreement ballots which you have conducted on behalf of Suncorp?---Mm hm.
PN3315
And we have discussed those - and then ballots on behalf of other client organisations and you have described those. Now, aside from the Commonwealth Bank ballot, were any of the other ballots telephone ballots?---Those weren't but there's one listed at that particular point, ING. It was subsequent to the Suncorp ballot and it was a telephone ballot.
PN3316
I see?---Based on the same technology as the Suncorp ballot.
PN3317
And the ballots which are described as being conducted for the Troliborg Queensland Rubber Company, Lockwood Security Products, SSL Asset Services, were they certified agreement ballots?---Yes, they were. Troliborg was attendance, Lockwood was attendance, SSL Asset Services was declaration postal.
PN3318
You might just describe that, what was that term declaration?---Declaration postal system. That was a system where - it's commonly used in union elections, for registered organisations, where the voters need to sign their name on a slip that's attached to an envelope.
PN3319
I see, yes?---The slip is removed before you open the envelope and count the ballot.
PN3320
Could I take you to paragraph 8 of your statement and particularly the second last sentence where you say there that:
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3321
Secure Vote provides ordered annual corporate governance review services to client organisations.
PN3322
?---Mm hm.
PN3323
Could I ask in respect of the Suncorp ballot, was there a process of an audit check conducted in any respect in advance of the ballot being conducted?---I am not sure what you mean there.
PN3324
Well, is there - at what stage in a ballot such as the Suncorp ballot might an audit check be conducted?---Well, you will have seen elsewhere that we don't really have any control over the database we've as provided but we do of course tend to audit, make standard audit checks, de-duping and the like - looking for duplicates and the like on a database to establish its basic validity and relevance. We are not able to ascertain eligibility and then of course at the end of the ballot there are, you know, the basic and the standard reporting is undertaken to ensure that everything is kosher. If you're suggesting that there was some sort of third party involvement in an audit or anything like that, then there wasn't.
PN3325
No. When there has been a contractual arrangement entered between your client Suncorp Metway and Secure Vote, is there a document which would record some form of audit protocol in advance of the ballot being conducted?---There was no contract document per se. There was an agreement to run the ballot, a request for quotation and then an agreement to run the ballot which we'd run it for them.
PN3326
Yes?---There was no formal contract drawn up for this particular ballot. The company does have contracts that is used but didn't apply in this particular ballot.
PN3327
That is your company has such contracts?---Secure Vote and formerly Election.com.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3328
So do you agree with me that there was therefore no audit protocol that was agreed or that was recorded in writing in advance of the ballot?---There was no audit protocol.
PN3329
Yes. Could I show Mr Kidd a document? Mr Kidd, could I just ask you to look through that bundle of documents? Could I briefly describe to you what it is, or what it purports to be? Could I put to you, Mr Kidd, that what that document records is material that was provided by the company Suncorp Metway GIOA Australia in respect of a response to a summons to produce in this matter, and that the summons in general sought information concerning the contractual arrangements and general provisions between Suncorp Metway and Secure Vote that for the conduct of this ballot. Would you recognise the documents as falling within that description?---They fall within the description.
PN3330
All right. I actually believe that some of the documents seem to be reproductions of one another?---They look like it.
PN3331
Yes. But in any event I have provided to you the whole of the document which was provided to us in response to our summons, and in that respect it may be that some of the internet email correspondence was re-sent on different days, and now was a question and answer thing, and there was simply a reply sent, so that attached to it the earlier correspondence. But do you agree that that documentation, such as it is, contained in that bundle represents the whole of the terms of engagement between Secure Vote and Suncorp Metway?---I think that's about it.
PN3332
Right. There was no subsequent confirmation in any other contractual sense?---No.
PN3333
And there were no subsequent documents which were provided by Secure Vote to Suncorp, as to the manner in which the ballot would be conducted?---There would only be, I guess, one other email, or a couple of emails, which related to the need to do extra programming for that transfers group, that you'll no doubt speak about later.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3334
Yes?---And the cost involved there that we had to get the programming done from New Zealand.
PN3335
Oh, all right. I understand?---So that's about the only other thing, I think.
PN3336
Yes. All right. Well, could you look at the bottom of the first page, and that is a message to you from Ms Davis, where she is referring to a telephone discussion this afternoon, and confirmed her request for a quote; you see that?---Yes.
PN3337
Now, that is dated 1 November. Is it your recollection that you had had prior discussions to that date with Ms Davis, regarding undertaking the ballot for Suncorp Metway in this manner?---You know, I'm not too sure of the dates involved. I can't confirm or deny that. I'm not really certain.
PN3338
All right. And if you could go over then two pages, have you seen those notes before?---No.
PN3339
So they are not your notes?---No.
PN3340
You perhaps understand them to be Ms Davis' notes arising from a discussion with you?---I presume that's what they might be. They're not my notes though.
PN3341
No. Could you go over to the next page, and could I take you to about the middle of that page, and there is an email from Ms Davis to you on 8 November, saying that, in the second paragraph, "We have decided to use the phone ballot"?---Mm hm.
PN3342
Then she confirms your quotation?---Mm hm.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3343
And that is - the price as such is blanked out?---Mm hm.
PN3344
You go over to the next page?---My next page is 1 November.
PN3345
I beg your pardon?---My next page is a duplicated page.
PN3346
Yes, it does appear to be a duplicate, but in any event that is the material - - -?---So which page do you want me to look at? Which page am I supposed to be looking at now?
PN3347
Well, the next one over, and I think it might have a number 6 on the top?---Six on the top. The next page I have has got "okay" and "voting" on it.
PN3348
Yes. All right?---Is that the one you're talking about?
PN3349
Yes. Disregard that?---Disregard that page?
PN3350
No, disregard the "okay" and "voting"?---Yes, okay.
PN3351
This does appear to be a duplicate, but in any event what the email towards the bottom of that page shows is that quotations were initially sought for a range of ballots to be conducted, including a postal ballot, internet ballot, phone ballot, and then a combination of those ballots?---Yes.
PN3352
Right. Could you go over to the next page? Now, that is a document which appears - - -?---That's from myself.
PN3353
- - - a letter from yourself - - -?---Yes, it is.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3354
- - - over the next three pages to Ms Davis, dated 6 November, and I take it that that letter was contained in one of your email replies to Ms Davis?---Yes.
PN3355
And that would have been - - -?---That's reported in my election report.
PN3356
Yes. And that would have been an email dated 6 November?---Looks like it.
PN3357
All right. And then you provide a description of the types of ballots that could be conducted?---Mm hm.
PN3358
And first of all you describe a postal only ballot?---Yes.
PN3359
And an internet ballot and then a telephone ballot?---That's correct.
PN3360
And you provided quotations and time lines for each of the ballots?---I think we only provided the one. I might have time line there. I can see it. It was just a draft notion at that stage.
PN3361
Oh, I see, and the time line which is on page 3 could effectively be applied in respect of any of the ballots processes?---Well, it looks like it's based on the internet predominantly there, doesn't it?
PN3362
I beg your pardon?---If you look at the second kind of column there beside the date, it says "internet" and "postal", doesn't it. We didn't specifically do anything with the telephone by the look of it.
PN3363
No?---In terms of the draft time line.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3364
Yes. So that the options that you provided - - -?---Internet and postal.
PN3365
In terms of their priority, could I characterise the options you have provided as principally focussing on postal ballot or internet ballot?---I presume perhaps postal. I don't know. I don't know that you can prioritise them, can you? I mean - - -
PN3366
Did you prioritise them?---No, I did not. I just stated just the way they came out. I listed postal first, but it wasn't meant to be a priority in any way. It's just the first one I rattled off, I guess, at the time, and the first one obviously I quoted, because we'd done postal previously. Internet, then telephone and then the combinations of each.
PN3367
So did you advocate telephone ballots to Suncorp Metway?---I don't know? I'll have to read it again. I don't think it argues one more than the other really. Obviously there are some benefits of years of electronic voting, because it provides greater accessibility for the employees or for the voters. They have a greater chance of participating in the ballot.
PN3368
So is it your view that this letter did not advocate telephone balloting?---I don't it particularly advocates any particular type of ballot. They are a series of options for the client to think about. I don't advocate any one more than the other particularly.
PN3369
Now, in discussions that you had with Ms Davis, aside from that letter, did you advocate a telephone ballot for this vote?---I think if anything I had suggested that my personal preference is an internet ballot, because people have screens in front of them, but, I mean, with the telephone ballot they got the prompts and they are very, very clear, and they're very succinct in the case of this particular ballot, so there's really little difference. They both provide greater accessibility than you would with a postal ballot, but I don't believe that I advocated the merits of one over the other particularly. I think I may have said to her, though, that my personal preference was just internet, but so be it. If Suncorp had been going down electronic track that was all, but they were all - they are all good and healthy ballots.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3370
Is the point you are making there that if an electronic ballot was the preferred option, your personal view given your expertise, was that the internet was the preferable option?---Only as a personal preference.
PN3371
Yes, obviously that, but based on your experience?---Only as a personal preference because you have a screen in front of you and that's, you know, particularly possibly advantageous for some people, but for no other reason. It's just a personal preference. I like internet voting, but they're both beautiful little systems. I just have a personal preference for internet. It's effectively more robust than a postal ballot anyway.
PN3372
Now, if you look through that documentation that is there, my reading of it is that there is no further information as to the preferability of either of the various systems of conducting a ballot. Do you agree with that?---Yes, I think so. I haven't read it all, I haven't read it word by word, but it sounds plausible.
PN3373
All right, could I take you to paragraph 13 and to an extent paragraph 12 and possibly just focus on the first sentence of paragraph 13 to begin with. To some extent you have covered this information in the material that you have, or answers that you have already given, but you took the view in conducting this ballot as the returning officer that determining the electoral roll was entirely Suncorp's responsibility?---Well, it is. It's their responsibility. I've no authority under the law to direct them as we would in a formal registered organisation election to provide the relevant data. I just have no authority to do that, so - under the Workplace Relations Act. So all I can do, all the AEC can do is seek the information from the relevant client and to an extent you're at the mercy of the client, the information they provide. Also unable to assess eligibility even in a formal union ballot as an AEC returning officer, it would be beyond my powers to try and make a judgment as to particular of entitlement of a member of an organisation. I rely on the organisation's records and similarly in respect of this, particularly in this case of a certified agreement ballot where there are no formal rules anyway, I rely on the organisation to provide what should be a list of eligible voters.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3374
Do you see that there is no role which a returning officer such as yourself would play in providing any advice to a client in respect of the compilation or preparation - - -?---You can - - -
PN3375
Wait, if you would wait for the question to be finished; of the voting roll?---You finished?
PN3376
Yes, thank you?---Surely, I mean I provide some advice and assistance in virtually all aspects of the ballot. But again I reiterate there are no formal rules and I'm not empowered under the law to follow any particular proscription, but we will - - -
PN3377
I appreciate the point you make there?--- - - - will advise and assist, but then the client ultimately determines.
PN3378
Did you provide any advice or assistance to Suncorp in respect of the preparation of its voting roll?---The suggestion would have been it could be more in the nature of a continuous roll. There are fundamentally two types of voter rolls in elections and ballots. In organisations where their rules mandate a particular cut-off as to entitlement, and there's deemed to be a cut-off roll, that you cannot then add names unless there have been particular omissions to the voter's roll and from membership records and the like. And you would only delete where you're satisfied that you can delete a name. With a continuous roll it's where the rules of the organisation are fundamentally silent, you can keep adding and deleting until, I guess, the voting medium permits you to do so. With the Suncorp, with certified agreement ballots I think both myself and stemming from the AEC there is a tendency to use virtually the basis of a continuous roll in these ballots, but always tempered by the fact that the perusal provisions, the 14 day perusal provisions need to be taken into account and therefore it's then up to the client to determine that the employees listed as eligible meet that criterion. But there is no reason or rhyme in the world why if a particular employee who was indeed eligible had been omitted from the voter's roll, the original list that was provided, then there's no reason why they shouldn't be added. Similarly, there's no reason why people shouldn't be deleted if they no longer have an entitlement to vote in such a ballot.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3379
Yes, and by the description of a continuous roll you describe that as including continuous, during the course of the ballot. In this case during the course of the seven day ballot?---Well, that depends on the voting medium doesn't it? In an internet or a telephone ballot we can probably keep adding, but you can't always keep deleting, right? In a postal ballot you can only add to a point where it's reasonable to send material out to a particular person who's supposedly entitled, but if it was a declaration postal ballot you would be able to delete right up to the close of the vote because you could withhold their declaration.
PN3380
So given the nature of this ballot as a telephone ballot, you took the view that it was a continuous roll - - -?---Not completely.
PN3381
Well, let me finish the question; up until the end of the ballot process. That is including from the commencement of the vote, through the seven day period to the end?---Effectively I deem it to be a continuous roll, but always tempered by the fact that the client has to determine which people should be added to the role because again additions could in fact be just plain omissions of people who have not been included in the original database. In terms of deletions, yes, I think where it's possible and where it's convenient we should keep deleting until - as long as we possibly and physically can. I'm not talking about - - -
PN3382
So you - - -?---I'm not talking about new employees coming on who are perhaps not within their 14 day period, I'm not referring to those people at all in terms of additions. I rely on the client to provide me the names of the eligible employees and we so deal with that information.
PN3383
Would you agree that as Suncorp had the capacity to simply advise you of names of persons who would be given an entitlement to vote, that there is a possibility you were provided with names of persons who would not be eligible to vote?---It's a possibility, yes.
PN3384
Can I take you to the last sentence in paragraph 14?---Yes.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3385
You have expressed a view there that it would be inappropriate for you to ask the eligibility of employees?---I said to assess.
PN3386
To assess?---It would be inappropriate for me to attempt to assess. And I wouldn't even do that in an election that was formally conducted under the Act for a registered organisation. I am not in a position to assess eligibility even as a former industrial AEC returning officer under the Act. I have no power to do that.
PN3387
So is it your view that as a returning officer in this ballot, it would not be appropriate for you to ask any questions of the - well concerning the eligibility roll?---I assert and impress upon the organisations concerned that they should be providing me with a list of eligible employees. Under the Act I have no power again to seek formal directions for same. In a union election again I reiterate I would issue formal directions. I have no power to issue formal directions in a certified agreement ballot. But again maybe I can write to an organisation and say please try and certify these people to ensure that they're entitled, or I can talk to them about it. I can do both, but I'm still effectively dependent upon the organisation to provide a proper list of eligible voters. I have no powers to determine eligibility.
PN3388
Did you provide any advice to Ms Davis in respect of the eligibility roll of voters for this election?---No.
PN3389
No?---No, not eligibility. How could I know who was going - the classifications of staff and the like. It's impossible. It's a bit like in an election again and I keep harping about this, but it is important for you all to understand that in an election situation if it's a registered organisation then there may be some occupational qualifications for particular candidates. It's not my role to try and adjudicate or question those qualifications. I have to rely on the information that's provided by the organisation that they have indeed been appropriately listed as members in the organisation's membership database. I cannot question eligibility. I cannot make a judgment on same. I'm not qualified to make those judgments and it obviously applies in a certified agreement ballot as well. I have no authority. I have no capacity to make such judgments.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3390
Well, can I put this proposition to you that in paragraph 16 what you are saying is that Secure Vote and yourself have a particular understanding and expertise which no doubt is developed from many years and much wide experience in conducting ballots. Could I put to you that in those circumstances if advice is being provided to an employer who would have only occasional or irregular experience of determining a roll for a ballot, that it would not be inappropriate to provide advice about eligibility?---I cannot determine eligibility for a - I don't know the classifications or the particular groups of employees in organisations, I have no knowledge of that.
PN3391
And do you not see it as a role at all for yourself to seek to obtain that information and thereby provide that advice?---I do not. There was no section 215 of the Act.
PN3392
No, I appreciate that?---It's irrelevant.
PN3393
Could I take you to paragraph 20 of your statement? Now, there you are briefly describing the interactive voice response system, the IBR computer system?---Yes.
PN3394
Do you have any knowledge or present as a witness having expert knowledge of that system?---No, I do not. As we indicated before I am not trained in computer programming or the like or on basic technology.
PN3395
I take it you are aware that Election.com New Zealand entered a commercial relationship with another company, Panztel Pty Limited, in relation to the use of the IBR system?---I realise they have a relationship, I don't know the details.
PN3396
Did you have any discussion with or were you privy to any of the correspondence between Election.com New Zealand and Panztel?---No, I've never seen any of it.
PN3397
You've seen nothing?---I've seen nothing.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3398
Did you at any time speak with any officer or employee of Panztel?---Not about those sorts of arrangements. I've seen a couple of emails come through about process of the ballot and things we're doing with particular relevance to the ballot but no, I know no details of commercial arrangements or the like. I don't even know the people who work in that organisation - just a couple of names on emails.
PN3399
Have you had through Secure Vote any prior dealings with Panztel?---Only through Election.com New Zealand in the context of the Commonwealth Bank balance which were telephone ballots.
PN3400
All right. Could I take you to paragraph 22 of your statement?---Mm hm.
PN3401
Now, there you have described that Election.com identified 43 duplicate and two triplicate entries in material that was provided to it?---Yes.
PN3402
And then you go on to describe that Election.com advised - and I take it Election.com advised Secure Vote, of nine possible duplicates?---That's correct.
PN3403
And are those nine duplicates in addition to the 43 duplicates identified by Election.com?---They were identified by Election.com.
PN3404
But the nine are additional to the 43?---Yes, that's my understanding. The maths are right - I think the best way to look at all of that is in terms of annexure whatever it is - 2 or 3 where it outlines all the adjustments and activities that were made in relation to the database. It describes them and it statistically shows them.
PN3405
So if we are looking at 52 duplicate entries do you consider in your experience that a high proportion of duplicate entries?---Yes, that's a bit high.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3406
Would that cause you any concern about the accuracy of the original information which was provided?---Well, obviously it rings some alarm bells but I mean they were identified as duplicates. You could see on the databases once the names were identified that they'd just been listed in a couple of different categories so they were clearly duplicated.
PN3407
Is there any explanation or a view that was reached as to why there was a high proportion of duplicates?---No, no, just that we drew them to their attention and they then confirmed accordingly and then we cleansed the database.
PN3408
Are you aware that the database records were supplied to Election.com by Suncorp - I withdraw that - by Secure Vote in the form of five separate spreadsheets?---I think it was five separate Excel spreadsheets. They were emailed to me and I emailed them, I forwarded them on to Election.com New Zealand.
PN3409
Do you have an understanding as to why there were five separate spreadsheets?---Well, they're obviously different groups that were part and parcel of this ballot process I suppose. It's not for me to question particular groups or whatever. Again, I have no role on eligibility or the like. We take it as given but we do these duplication searches obviously so that the, any superfluous entry is obvious deleted so you have a clean database or as clean as you can get it.
PN3410
All right. Could you go to paragraph 26 and towards the bottom of that paragraph? What is being described in that paragraph is the situation where late in the ballot process, that is on the 16th, you were advised by Suncorp that two redundant staff had been issued with a PIN and had therefore been given an entitlement to vote and that one of those - and you were asked to delete them but it turned out that one of those persons had voted?---We weren't asked to delete them. They were drawn to our attention and I made the determination to delete the one that hadn't - had the unconsumed PIN. I made that decision myself. I note in Mr Steyn's statement he considers that I was instructed in all these areas but I made the decision to delete that person. I wasn't directed by Suncorp or anybody else and then I informed Election.com New Zealand that that person should be deleted from the database.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3411
In the result there was a vote cast by one person who was not entitled to vote?---Well, it's a question as to whether or not he was entitled, isn't it? He's presumably redundant - I think I saw some correspondence along the track attached to all these statements wherein it was suggested that in Suncorp's view he was eligible but the guy, he had cast a vote anyway. So he was either eligible and his vote was okay or he wasn't eligible and it was polluted by one. That's the way you look at it, I'm not sure but it can't affect the outcome of the ballot as it's put to me now.
PN3412
If he was redundant at the time the vote opened he did not have a right to vote?---I'm not going to question eligibility, I don't know.
PN3413
Well, it is a simple proposition. If he was redundant at the time the vote opened - - -?---Well, I don't know when he was redundant. When was he redundant?
PN3414
Well, I am asking you just to consider this proposition. If he was redundant at the time the vote opened he did not have an entitlement to vote?---That would be correct.
PN3415
If he was not redundant at the time the vote opened he did have an entitlement to vote?---That would be right.
PN3416
And if he was subsequently made redundant that didn't affect the right that he had to cast the ballot at the time that he was still an employee?---Sounds fair.
PN3417
So do you agree with me that if the person was redundant at the time the ballot opened and he cast a vote he was not entitled to do so?---That's what I said, it would pollute it by one.
PN3418
I take that as yes?---Okay, yes.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3419
Good. All right. Can we go over to page 6 and this is a description of a group of 55 employees?---Yes.
PN3420
THE SENIOR DEPUTY PRESIDENT: That seems like a new topic, Mr Penning?
PN3421
MR PENNING: Yes, your Honour.
PN3422
THE SENIOR DEPUTY PRESIDENT: So I will adjourn until 2 pm.
LUNCHEON ADJOURNMENT [12.57pm]
RESUMED [2.07pm]
RICHARD KIDD:
PN3423
MR PENNING: Thank you, your Honour. Thank you, Mr Kidd. Could I ask you to turn to page 6 of your statement, please?---Done that.
PN3424
And could I ask you in relation to the group of 55 employees, am I correct in putting to you that 55 employees were included in the ballot who were not eligible to vote?---I'm given to understand that that's the case.
PN3425
And is it possible that all of the 55 employees could have voted, and could have voted yes?---It could be possible.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3426
At paragraph 29 you deal with the issue of tracing of the group of 55 employees after that group was identified to you by Ms Davis. Was there any provision in the contractual relationship between Secure Vote and Election.com, which would prevent the tracing of votes. That is, prevent the identification of the way in which a voter voted?---I think what you're suggesting is that they automatically would have looked to see how a person had voted. Well, they wouldn't do that. What would have happened - - -
PN3427
No. That is not what I have suggested. What I have asked is was there any contractual in the relationship between your company, Secure Vote, and Election.com preventing the tracing of votes?---I hesitate to reflect on your terminology, tracing votes. What we would do is we would look - I would ask Election.com in New Zealand, once I'd established indeed that if we had to go through the exercise, I would have asked Election.com to advise me whether or not any of those 55 people, if it had become an issue, had consumed their PINs.
PN3428
Do you agree with me that there was nothing in the contractual relationship between Election.com and Secure Vote to prevent the tracing of votes?---They would only trace votes, as you describe - I presume you're suggesting that we would go to the extent of seeing how a particular individual has voted. I would not request such a point at any time. A voter's vote is sacrosanct.
PN3429
Well, I will ask the question a third time. Was there anything in the contractual relationship between the two companies preventing the tracing of votes?
PN3430
MR HARMER: Your Honour, could I just object at this stage. I think there needs to be clarity in the question. There seems to be an issue, certainly in the witness' mind, with the meaning of the word "tracing", and despite attempts by the witness in his answers to point out that distinction, the same question is being pressed with the same ambiguity, and I think that in fairness it needs to be clarified what is being asked.
PN3431
THE SENIOR DEPUTY PRESIDENT: I don't see how it can be made much clearer. I don't think the witness is listening to the question. If you want to put it again, put it, Mr Penning.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3432
MR PENNING: Mr Kidd, if you look at the second sentence of paragraph 29, can you see that you used the word "trace"?---I didn't use the word "trace". That was a quotation from - a letter from Suncorp. That's why I had inverted commas around the word "trace". They're their words, not mine.
PN3433
In any event the word "trace" is in your witness statement, and you understand what is meant by the word "trace", don't you?---Trace is to me the connotation that we would go beyond seeing whether or not a PIN had been consumed. What I am suggesting to you is that I would not, under any circumstances, go back to Election.com and ask or direct, whether it be contractual or otherwise, to trace and see how a particular individual or individuals had voted. I would never do that.
PN3434
You understand - - -?---I would only do that at the direction of a Court.
PN3435
You understand that the meaning of "trace" is to identify how an individual voted, isn't it?---I believe that's what suggested there, yes.
PN3436
And that is the way in which that term is used in that sentence in that paragraph, isn't it?---I reiterate that that was a quotation out of a letter from Helen Davis, and it will be an annexure to the statement. Perhaps - - -
PN3437
You might just listen to my question. You understand that that is how that word is used in that sense in that paragraph? That is, to identify how an individual has voted?---Correct.
PN3438
Now, I will put the question to you again, which I originally put. Was there any contractual, any provision in the contractual relationship between Suncorp - I withdraw that - between Secure Vote and Election.com, which would prevent the tracing of votes?---Well, there was nothing in the contractual relationship at all that referred to this. There was no real contractual relationship, except that we asked Election.com in New Zealand to assist us with this ballot, as they'd done with the Commonwealth Bank. They provided a quotation for their services, and we accepted it.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3439
You agree with me that there was nothing in the contractual relationship to prevent the tracing of votes?---Stephen Kilpatrick and his assistant in New Zealand would never trace any votes. By trace I'm suggesting to you that you are harking back to how a particular individual has voted. They would never check that, they would never do it on my direction, and I would never direct them to do that in any event. You seem to have a bit of an - - -
PN3440
Your Honour, I have attempted to ask that question in a clear way on four or five occasions. Could I seek a direction from the Commission that the witness answer that question?
PN3441
THE SENIOR DEPUTY PRESIDENT: Yes, you can. The question is a simple question. It doesn't need an explanation in the answer. It needs either a yes or a not. Put the question again.
PN3442
MR PENNING: Was there any provision in the contractual relationship between Secure Vote and Election.com to prevent the tracing of votes?---I don't believe there's any provision.
PN3443
Thank you. When Ms Davis has emailed you and raised the issue of tracing of votes, was she aware that votes could be traced?---I'm not certain that she was. It wasn't even clear to me whether votes could be traced.
PN3444
Was the issue of whether votes could be traced identified at the outset of, or before the commencement of the ballot?---I'd say it's after the ballot had commenced, really.
PN3445
Listen to the question, if you would, Mr Kidd. Was the issue of whether votes could be traced identified at the outset of, or before the commencement of the ballot?---The issue of being able to trace votes?
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3446
Yes?---Could you repeat your question, please?
PN3447
Was the issue of the ability to trace votes addressed at the outset of, or before the commencement of the ballot?---Addressed with whom?
PN3448
Addressed between your company, Secure Vote, and Suncorp?---It was discussed - as I recollect it was discussed, but only - not in a specific way, because I don't believe that I was able to - I wasn't convinced myself at the time whether or note the votes could be traced. I am uncertain about that.
PN3449
Is your evidence that the issue was addressed, it was discussed, but there was no clear view reached?---I believe I have some recollection of a discussion with Helen Davis about this.
PN3450
Is it your recollection that there was a clear view reached about that issue prior to the ballot commencing?---No, I don't believe so. Not absolutely clear.
PN3451
Prior to the ballot commencing did you say anything to Suncorp about the ability to trace or identify how a person voted?---My understanding was that you couldn't trace them.
PN3452
And is that what you advised Suncorp?---I believe I indicated to them that you couldn't trace them. I'm absolutely not clear on that though. It was my understanding at the time that, yes, indeed you could - could not, sorry.
PN3453
Do you see the question of whether a vote can be traced as relevant to the question of an employee's confidentiality in exercising a vote?---No, I do not really. And that's because the information that is linked to the vote is only available to those two people in New Zealand and to myself. It's not available to anyone else, and it would never be made available.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3454
Do you know whether statements were made to employees who participated in the vote regarding the confidentiality of their vote?---Am I aware of statements made?
PN3455
Yes?---What, through emails or something from Suncorp, I don't know.
PN3456
Are you aware of whether there was any material in the information which your company provided to employees who would participate in the vote about the confidentiality of their vote?---I just need to - refers at appendix 1, I guess. We do say:
PN3457
We appreciate the need for the highest level of security and integrity.
PN3458
Which annexure are you looking at, Mr Kidd?---I'm looking at annexure 1.
PN3459
Yes, and annexure 1 was material that was included in the package for employees?---I don't know. Not anything that came from Secure though. All we sent out were PIN advice.
PN3460
Does annexure 1 say anything in relation to the confidentiality of a vote?---Just seeing here it says, "The general," this is on page 7:
PN3461
The general processes applied in the Commonwealth Bank ballots are extremely robust and the secrecy of each voter's intention was safeguarded.
PN3462
That's about it. I don't think it says anything otherwise.
PN3463
Could I ask you to turn to tab 40 - I am sorry that is not of your annexures, they are annexures to Helen Davis. Your Honour, would Mr Kidd please be able to be shown the volume of Helen Davis' annexures at tab 40?
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3464
Mr Kidd, could I ask you to turn to the two last pages of annexure 40; those pages 20 and 21. And do you see on page 20 at the bottom there is a question, "Is my vote confidential?"?---Mm hm.
PN3465
And do you see in page 21 there is a reference to 5.0 confidentiality clause?---Mm hm.
PN3466
Were you aware that that material had been included in information to employees who would participate in the vote?---I don't - no, I'm not absolutely sure now. I don't recall this document.
PN3467
Are you able to say whether that is information in that form which you provided to Suncorp? That is in respect of those two issues which I have taken you to?---The, "Is my vote confidential? You do not have any concerns," etcetera I don't believe they're my words, but the words are appropriate.
PN3468
And is that your view in respect of both the subheading, "Is my vote confidential?" and the subheading, "Confidentiality clause"?---Well, the clause is a standard thing, so that's no difficulty there. That's a clause that was used from a previous ballot instruction sheet.
PN3469
Are you aware that document is issued under your name?---Yes, I am.
PN3470
Are you saying that you are not familiar with, or the author of that document?---What I believe may have occurred is that a previous model from another ballot has been used, plus information from the background. I don't recall actually just drafting this at is appears here.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3471
You are not the author of that document?---I don't recall sending it to them, but I could be wrong. I don't recall sending it to them. What it is, is it's a reflection of previous instruction sheets that have been sent out to Suncorp staff in the last, at least I think, two ballots updated for Secure Vote and of course incorporating some of the other detail, relevant detail. But notwithstanding that the information, "Is my vote confidential?" Yes, it is confidential. The employee number was required as an additional security mechanism. It is an authentication mechanism for the protection of the employees and the protection of the ballot integrity. "Suncorp indeed have no access to PINs," that's absolutely correct and nor would anybody else.
PN3472
All right, well can I - - -?---"And the vote is absolutely secret," that's correct.
PN3473
All right. Well, can I put this to you it is incorrect to say that your vote is absolutely secret when you have acknowledged that a vote can be traced?---It can only be traced, however, if there was a request for it to be traced and indeed if that ever occurred and that will never occur. It will never occur. That information is private and confidential. As I said before a person's vote is sacrosanct and whether or not that information is available to be, as it were, sorted out from the puzzle of the various databases that were used, then that puzzle is never going to be made available to anybody. The integrity of the vote is maintained and the secrecy of the vote is maintained.
PN3474
So you don't agree with my proposition that it is incorrect to say that your vote is absolutely secret, even though the vote can be traced? You don't agree with that proposition?---Well, it is absolutely secret because our people will never divulge that information and nor would I.
PN3475
Yes, so you don't agree with my proposition?---Not entirely.
PN3476
All right. Could I just take you to paragraph 32 of your statement and then also particularly the last sentence of paragraph 32?---32?
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3477
Yes?---Yes.
PN3478
Now, there you express some opinions based on your experience of the potential for fraudulent activity to occur in certain ballots. Do you see that?---Yes.
PN3479
Have you had experience of fraudulent activity in relation to certified agreement ballots? I am not saying this ballot, I am saying drawing on your other experience?---No, I have not.
PN3480
And where you are referring to fraudulent intention or fraudulent activity what ballots are you referring to?---I was just referring generally to the fact that if material is left lying around, particularly in a workplace there is a greater propensity for problems to occur in a ballot. And of course there was one particular case which was mentioned in the context of this really. A CEPU case where material was actually - ballot material was actually virtually hijacked by postal staff and they did, in fact, fraud the ballot. So an outgrowth of that Court case was the recommendation to the AEC that whenever they run postal ballots, that they make the material as indistinguishable as possible from normal mail.
PN3481
Yes, I understand that?---You understand all that.
PN3482
Yes. Have you had any experience of employers acting fraudulently in connection with a ballot?---No.
PN3483
Never?---Never.
PN3484
So your experience has only ever been of workers acting fraudulently in a ballot?---Or union officials perhaps.
PN3485
Never an employer?---No, I've never had a problem with an employer.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3486
All right. In paragraph 34 you say there that there is, towards the end of the first sentence, that there was a separate text that was developed to cater for the specific requirements of what was identified as the 40 employees who were the transfers group?---Mm hm.
PN3487
Are you aware of whether the separate text in relation to the information for the transfers group is in evidence as an annexure in any way to your statement?---I don't think it's here actually.
PN3488
Are you familiar with the annexures to Ms Davis's statement?---Well, I will pull them up in here again.
PN3489
The point I am seeking to raise with you is whether the text of the information to the transfers group is in evidence in the proceedings in any way?---I don't know.
PN3490
Are you familiar with Ms Davis's annexures?---No, I'm not.
PN3491
And you say in the second sentence of that paragraph that:
PN3492
Special programming was required to facilitate Suncorp's requirement in relation to the transfers group.
PN3493
?---I understand that was the case, yes.
PN3494
And that special computer programming was undertaken not by Secure Vote but by Election.com?---I believe it may have been undertaken by Panztel - arrangements through Election.com.
PN3495
But it was not undertaken by Secure Vote?---No.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3496
Could you turn to page 9 of your statement and the top of the statements in relation to the continuation of paragraph 40?---Mm hm.
PN3497
On about the fourth or fifth line down you describe the text of the script that was played to a person who phoned the number to record a vote?---Mm hm.
PN3498
Are you able to say what was the process of determining that a yes vote or the positive acceptance of the agreement would be placed as the first option rather than a no vote or the rejection of the agreement?---I believe that's more or less just a convention that's been applied through certified agreement ballots generally, whether they be paper ballots or not, but what you tend to find is that there is usually a yes or an accept above the no but there's no - you know, there's no rhyme or reason for that. However I guess what we were doing was just really following the precedents that had been applied with ballot papers in the past, therefore the acceptance was placed in the context of the script first instead of a rejection, a no vote.
PN3499
Are you, as an election expert, familiar with the concept of the donkey vote?---Yes, I am.
PN3500
Is there a possibility that there was a donkey vote factor which occurred as a result of placing a yes vote first?---No, no, I do not believe that's the case at all because had to confirm the way they wished to vote and when they confirmed they were given an opportunity then to pre-cast so no, I don't accept that at all. It says you have selected to vote to reject or you have selected to accept. It is very clear to a person who is going through the phone process.
PN3501
Yes, but a donkey vote doesn't necessarily relate to an error in the voting process, does it? It relates to people taking a line of perhaps indifference or least interest, that is just starting at the top and numbering down or taking the first thing which is said to them?---You can assert that but I think it is very clear that people had to confirm so they had - and they had an opportunity to revise and or - as I said, it did cause a - as you well know, the script clarified to a person the particular way they had attempted to vote.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3502
All right. In paragraph 42 you then go into further detail about the group of 40 transfer employees. Do you know anything about the characteristics of that group of employees?---Only what it says down near the bottom of the page:
PN3503
To the best of my recollection this was a group of management staff in transition from GIO to Suncorp.
PN3504
Management people, I understand.
PN3505
Do you know anything about the, or more specific than the management group, about the classifications of those employees?---No, I do not.
PN3506
No?---No.
PN3507
Do you know anything about the workplace locations of those employees?---No, I do not.
PN3508
And when you refer to those employees having transition from GIO to Suncorp is your understanding of that statement that those employees at the time of the ballot were employees of Suncorp not of GIO?
PN3509
MR HARMER: Your Honour, could I just say in relation to that question, request some clarity? The term Suncorp, there are a number of companies in the group, there is one entity in the group that is a relevant employer. It might assist if there was clarity around that issue.
PN3510
THE SENIOR DEPUTY PRESIDENT: There was one company only mentioned in the agreement that was being voted on, was there not?
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3511
MR HARMER: That's correct.
PN3512
THE SENIOR DEPUTY PRESIDENT: Yes, so perhaps if that could be identified.
PN3513
MR PENNING: Could I clarify then that question, Mr Kidd? What you are referring to in the third last and second last line of paragraph 42 on page 9 is that the employees in that transfer group had already become employees of Suncorp Metway Staff Pty Limited?---No, I can't say that at all. All I was told was that they were a group of management people who were in transition. I don't know who they were other than from their names on the voters roll.
PN3514
Right, I see. There was no further information that was provided to you about that group?---No.
PN3515
Now, aside from the issue which you have identified is the 14 day question - - -?---Yes.
PN3516
- - - in respect of that group, were you provided with any other information about the reason for the delay in identifying that group?---No, except the extension was that I - my understanding was that there had been a delay in getting messages to them about the agreement and that to meet the 14 day requirement then their voting window would need to be reduced.
PN3517
Have you previously conducted a certified agreement ballot where there were different internal time periods within the one ballot for persons voting?---No, I have not.
PN3518
Have you ever previously conducted any form of ballot where there were different internal time periods within the ballot for different groups of persons voting?---I'm just thinking about that. No, I think it was something new.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3519
If it was considered that a seven day period was necessary for one group, was there any basis or grounds provided to you as to why a three day period was adequate for another group?---I had some discussions with Helen about this particular issue but given that in a electronic ballot people have a bit more flexibility really than in a postal ballot I didn't see any particular problem in these people having the lesser window and particularly given that all material is sent to the individuals at the same time so the people who had the lesser voting window had the same amount of information about the upcoming ballot, it is just that their window of opportunity was a lesser one. I don't see any particular difficulty with that although I did discuss at the outset the questions of equity that might be relevant. But I was satisfied that it would be fine, I had sufficient time - I mean with the telephone or an internet ballot you are able to vote right up to the last moment. You can only do that in an attendance ballot, you can't do that in a postal ballot because it will always be a cut off in time where your material is travelling through the mail. It needs to be received by a returning officer in a post box at a particular time so they have more accessibility with electronic ballots, so I didn't believe it was a problem.
PN3520
All right. Could we turn briefly to the help desk question? Now, you have given some lengthy description of the operation of the help desk and you are aware that Mr Parker in his statement has also provided information in relation to the operation of the help desk?---Mm hm.
PN3521
Now, it was Mr Parker and yourself who were the officers who were in charge of the help desk?---He was in charge of the help desk. I dealt with the calls related to lost instruction sheets.
PN3522
Am I correct in understanding that there was no computer log or record of inquiries to the help desk?---There was no - there was a manual tally.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3523
Am I correct in understanding that there was no log or record of the nature of calls to the help desk?---I'm not sure, you'll have to ask Ian exactly what he did there but obviously he did maintain some categorisation because he indicated that there were 30, or approximately 30 people who had some difficulty and then he classified another group, a group in Toowoomba who had special problems because they got an email and believed that it was telling them they had to vote and of course these people, these particular individuals, weren't entitled. All the others I think he categorised as people who had either lost, destroyed their PINs. I think there may have also been one sub category of 20, 20 people - I think 18 from him and two from myself, people who had trouble with their instruction sheets having been damaged because of rain - - -
PN3524
Yes?--- - - - or the rain during the ballot period. So he had some categorisation but the only calls that I dealt with were instruction sheets and PIN inquiries.
PN3525
And any records that you kept and any records that Mr Parker kept to your knowledge were a manual form of record?---Yes, except during and after a few emails too.
PN3526
All right. Well, I won't take you in detail to other things which are in the north-west facility section of your paper. I might turn over, if you could, to page 13 in relation to the telephone ballot. In this respect, your Honour, this morning I took Mr Kidd to the email correspondence between his company and Suncorp Metway in respect of the quotations to undertake the ballot. Could I tender into evidence that bundle of material?
PN3527
MR HARMER: No objection, your Honour.
PN3528
THE SENIOR DEPUTY PRESIDENT: Yes, I know the bundle you mean. I will just have to find it.
PN3529
MR PENNING: Sorry, your Honour, I should have asked for it to be marked at the time.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3530
THE SENIOR DEPUTY PRESIDENT: It is the one that is - it is headed, "With Petition", is it not?
PN3531
MR PENNING: No. It is the one that starts off with Helen Davis' name at the top, and there is an email from Ms Davis to Mr Kidd. I can hand up a further copy of that. It may be easier, your Honour.
PN3532
THE SENIOR DEPUTY PRESIDENT: There is no objection, is there?
PN3533
MR HARMER: No.
PN3534
THE SENIOR DEPUTY PRESIDENT: The bundle of documents headed by one, being an email to Mr Kidd from Ms Davis, where, re "The Certified Agreement Ballot" of 7 November 2002, I will mark exhibit P17.
EXHIBIT #P17 BUNDLE OF DOCUMENTS HEADED BY AN EMAIL TO MR KIDD FROM MS DAVIS RE THE CERTIFIED AGREEMENT BALLOT
PN3535
MR PENNING: Now, Mr Kidd, you will recall that that document, which I showed you this morning, included quotations and some other preliminary information and correspondence between Ms Davis and yourself?---That's correct.
PN3536
Was the quotation which Suncorp was provided by Secure Vote for a telephone ballot the cheapest option for Suncorp?---I don't believe it was.
PN3537
So it is your understanding that the decision to proceed with the telephone ballot was not made on the basis of price?---I presume it wasn't. I presume it was made perhaps on the basis of accessibility for employees. I don't know. It wasn't made on price, I guess, I know.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3538
All right. Now, at the bottom of page 13 in relation to the way in which the telephone ballot was conducted, and going over to page 14, you say there is a table and graph on page 5 of your report, which reflect the votes recorded per day; you see that?---Page 5 of the report?
PN3539
I don't need you to turn to the report, it is just if you - - -?---Yes. Okay.
PN3540
- - - record that in your statement. Were the number of votes which had been case per day advised to you by Election.com?---Initially they were, and then I asked for the details to be provided, just the total votes, the turnout.
PN3541
And was that then done on a daily basis?---I don't know that I could say it was done daily. It was done maybe one day and then two days. I don't believe it was absolutely daily.
PN3542
And when you received that information in respect of the number of persons who had voted, did you in turn provide that information to Suncorp?---Suncorp had made a request at a particular stage of the ballot, and I don't recollect exactly when that was, it was already under way. Could they have details of turnout and then I had to check with Election.dom New Zealand to see exactly what they could provide, and they said they could provide the turn out figures, so we did do that, and it was provided on a reasonably regular basis to Suncorp.
PN3543
Yes. And so when it was provided by Election.com to you it was then in turn provided to Suncorp?---Helen Davis.
PN3544
Do you know whether that information was used by Suncorp to inform employees of the number of persons who had voted?---No, I don't. No.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3545
Then in a theoretical sense would you have any concern with an employer being able to promote a case during the course of a ballot?---Well, that's an interesting question, but I mean it's really different to what happens in elections is it? I mean, I guess in the case of this ballot, obviously the FSU were trying to perhaps argue against the ballot. Suncorp may have argued in favour. Politicians and candidates argue in favour and against. It all comes down to the voter to make up his or her mind, and unless the material - unless some particular material is proven to be able to mislead the voter into maybe casting or selecting their vote in a way that virtually unwittingly they had no, you know, no understanding that they were casting their vote other than the way that they had originally intended, and whether or not Suncorp actually maybe promoted a yes vote, and the FSU promoted a no vote, is really of little consequence to the outcome of the ballot. Unless it was proven, or could be proven through a very, very stringent test that people virtually unwittingly case their votes, because they were misled by going down a particular track, and I don't believe that would be case in this matter.
PN3546
So you had - - -?---It's a very difficult test to prove in any ballot or election.
PN3547
You agree with me that you had no concern with an employer being able to use the information about how many people had cast their vote - - -?---Well, I didn't know that they'd used it. I presumed that they were trying to find out how things were going obviously in terms of turn out, so I suppose the corollary of that is that might want to encourage participation. But, I mean, I have no control over what a client might do in terms of trying to advocate, you know, to vote one way or another in a ballot, nor any staff association. Of course I would prefer that all hands were off, and that no one annoyed the voters, and that they were just given the opportunity to cast their vote in peace, instead of being harassed by either party.
PN3548
Would that be what you would regard as, in some respects, best practice? That is, that after or at the time of the commencement of the ballot there not be further promotion of position?---I believe it would be best, but, you know, I still believe again it's not going to influence the result of the ballot, because no amount of campaigning, again unless it's deemed to be, and proven to be, absolutely misleading in a physical, in marking or selection of a ballot, and that's a tough test, then I can't say I heard anything back whatsoever. It's just a bit preferred that it didn't happen from either side.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3549
Well, it didn't happen from the union's side, because they weren't provided with that information?---Sorry?
PN3550
It didn't happen from the union's side, because they weren't provided with that - - -?---No. I assumed they were campaigning for a no vote, or whatever, though. So whether they had numbers or not they would still be campaigning, and it's just a bit unfortunate that, perhaps, either party goes to such lengths. It would be nicer again if people could just have their say in peace.
PN3551
I see. All right. Could you turn to paragraph 28?---Sorry?
PN3552
Could you turn to paragraph - oh, 68, I am sorry, of your statement. You refer there to what you understand to be standard testing conducted by Election.com?---Sorry. Which one?
PN3553
68, on page - - -?---Oh, 68, sorry.
PN3554
Yes. On page 15?---I was looking at the wrong one.
PN3555
Yes. Do you have any detail, or do you have any specific knowledge about what the testing was that was undertaken by Election.com?---Well, in the most basic sense it would be the same testing that I undertook, and that is to - oh, first of all make sure that the number was in fact a telephone voting number. We would have some employee numbers and PINs available to test, so obviously you key in an employee number, you key it so that it is distinct and carefully keyed. The prompt will come up, "Insert in your PIN", so you will key in some PINs and you will key them in correctly to make sure that the system takes through to the relevant ballot selection stage. And then you can test casting a vote or making a revised selection. Similarly, the testing would include keying in, you know, invalid employee numbers, and you would get that message, keying in a good employee number and then keying an invalid PIN to see what happens, and make sure that the system works, and so on. And you could also test that if you were in the transfer group that you'd be locked out at a particular time. So I did the basic testing. I understand that Election.com in New Zealand not only do that but then run some results to make sure that they can be validated either end.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3556
But the testing that you did did not involve any results coming back to you, did it?---No. No, it involved testing of the system aspects to ensure that all the prompts and that the core flow were in sync.
PN3557
All right. In relation to the count you give information in respect of that at paragraph 70 and you say in the last sentence of paragraph 70 that you gave advice in relation to the ballot to Ms Davis at a particular time which was at around 6.50 pm on 18 December. That advice was initially provided to Ms Davis by telephone was it?---It was by telephone, yes.
PN3558
And then in paragraph 71 you subsequently faxed information to her?---A declaration of results, that's all that was faxed.
PN3559
All right. Could you go over to paragraph 73. Now, there you are dealing with your analysis of the result of the ballot and you make particular reference to the 55 employees who were wrongly listed on the voter database. Do you see that?---Yes.
PN3560
And you form a view that the 55 employees are not important in respect of the validity of the vote and could I put to you, you form that view for the reason that the recorded majority is greater than 55?---Yes, the difference was 393 overall.
PN3561
And would your view have been different if the recorded majority was less than 55?---If the majority was less than 55 obviously we have a potential problem there, yes. Or apparently have a potential problem.
PN3562
If the majority was a little bit more than 55 do you see it as any problem with - - -?---Again I would be very careful, yes, I wouldn't declare something like that, no. But in this case there was a very clear difference.
PN3563
All right. If we go to paragraph 77. Now, in the last sentence of paragraph 77 and that issue has dealt with the question of identifying ballots which we have already discussed in some lengths, but the last sentence of that paragraph says:
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3564
Our only interest is to ensure that any election or ballot is managed efficiently, accurately, reliably and with integrity.
PN3565
?---That's correct.
PN3566
Could I put to you that your company also has a commercial interest in securing ongoing client work, including from Suncorp, in the conduct of certified agreement ballots?---Yes, you can put that.
PN3567
I beg your pardon?---You can put that, yes.
PN3568
Well, I have, do you agree with that?---Obviously we would be keen to keep Suncorp as a client and gain other clients.
PN3569
Yes. So what I put to you is that where you say our only interest is to ensure an efficient ballot, that that is incorrect it is an interest, but it is not your only interest?---My predominant interest is to ensure that an election is managed efficiently, accurately, reliably and with integrity and I put that above all commercial considerations. And I take account of comments made by Mr Steyn suggesting that the integrity could be compromised for commercial considerations. I mean I resent that out of hand. There is no way that I will be compromised in any shape or form because of commercial considerations. I'd rather not have the business. The moment we're compromised we have no business. So the key note thing is that we conduct them accurately, reliably and with integrity and of course efficiently.
PN3570
You have agreed with me, or do you agree with me that that is not your only interest that you also have a commercial interest?---Obviously a commercial interest.
PN3571
Yes. Could I put to you that you have an additional commercial interest in that your company is only just entering the field of electronic certified agreement balloting?---Sorry, can you repeat that?
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3572
Could I put to you that you have an additional or greater commercial interest because your company is only just entering the field of electronic certified agreement balloting?---I don't know if we have a greater interest.
PN3573
I beg your pardon?---I don't mean to say we have a greater interest, we have a commercial interest.
PN3574
Well, can I put to you that because you do not have an established client list in respect of conducting electronic balloting, that you therefore have a greater interest?---We have a list of some electronically conducted ballots for clients and that didn't include Suncorp because they'd never run one before.
PN3575
Do you accept the proposition that you have a greater interest given that you are only just entering the field of electronic balloting?---I don't know if I have a greater interest. I mean my predominant concern and interest is that a ballot be run properly, right, and with integrity. I put that above all commercial considerations. However, obviously we will be keen to pursue electronic voting media through other clients.
PN3576
Do you understand that Secure Vote has a corporate relationship with Election.com Limited?---A corporate relationship? No, I don't. What do you mean by a corporate relationship?
PN3577
That there are similar office bearers in Election.com Limited and Secure Vote Pty Limited?---I'm not really sure who you are talking about there, or what you're talking about.
PN3578
Are you currently the director of operations for Election.com?---No longer. Election.com doesn't exist in Australia any more. It is Secure Vote from 16 September 2002. Security Mail is the parent company. Election.com still functions in the UK, the US and New Zealand. It doesn't function in Australia any more per se.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3579
Do you have any information in relation to the shareholding interest of two companies, J.P. Morgan and Chase Manhattan Bank in Election.com?---Sorry, would you repeat that again?
PN3580
Do you have any knowledge of the shareholding of two companies, J.P. Morgan and Chase Manhattan Bank?---No, I do not. I have no knowledge.
PN3581
Do you have any knowledge of the shareholding of J.P. Morgan or a subsidiary of J.P. Morgan - - -?---No, I do not.
PN3582
Wait for the question; in Suncorp Metway?---No, I do not.
PN3583
Do you have any knowledge of employees or directors of Secure Vote also being directors of Election.com Pty Limited?---People in Secure Vote being?
PN3584
Directors?---No.
PN3585
No knowledge of common directors between Election.com and Secure Vote?---Not to my knowledge.
PN3586
Do you know a gentleman, Frank Nesci?---Nesci?
PN3587
Yes?---Yes, he's the managing director of Secure Vote.
PN3588
And is Mr Nesci also a director of Election.com Pty Limited?---If he was I don't believe he would be now. I really don't know the answer to that anyway.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3589
If I was therefore to say to you that information from the Australian Securities and Investments Commission as recently as January this year indicates that Mr Nesci is a director of Election.com Pty Limited, you would have no knowledge of that?---I don't know. The company changed hands on 16 September, so I'm not aware of that. I understand it was around about 16 September.
PN3590
Does Election.com continue to operate in Australia?---No. No, it operates out at Garden City on Long Island, New York.
PN3591
That is Election.com and Inc?---Yes and Election.com is obviously in New Zealand and the UK. The Australian operation was, as I understand it, effectively purchased by Security Mail, or Security Mailing Services as it used to be called.
PN3592
All right. Could I take you to paragraph 88 of your statement and there you describe, or in part respond to a statement by Ms Debra Hannan, industrial officer with the Finance Sector Union in relation to events which occurred when Ms Hannan and Ms Linda Hawkes went to the Lane Cove premises of Secure Vote. Now, you weren't present on that occasion were you?---No.
PN3593
And your giving information as to arrangements that you made for Ms Hannan and Ms Hawkes to go to the Lane Cove premises?---Mm hm.
PN3594
Yes. And whilst it is not said in your statement, could I put to you that that occurred on 10 December?---Right.
PN3595
And then in paragraph 90 you deal with the issue of scrutineering?---Yes.
PN3596
And what Ms Hannan has said in respect of what her understanding would be of the scrutineering role which would be allowed or made available to her through the Finance Sector Union. Are you aware of that?---Yes.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3597
And you say in paragraph 90:
PN3598
There are no provisions in the Workplace Relations Act in giving a right to scrutineer.
PN3599
?---That is absolutely correct.
PN3600
And then the last sentence:
PN3601
There is no scrutineering per se.
PN3602
?---That's right.
PN3603
Could I put to you that on another occasion a presentation was made to Mr Tony Beck who was the Federal Secretary of the Finance Sector Union and Ms Sharon Caddy who is now the Commonwealth Bank Officers section Assistant Secretary of the union in respect of scrutineering in a telephone ballot?---Telephone ballot?
PN3604
Yes. Do you have a personal recollection of giving a briefing to Mr Beck and or Ms Caddy?---Never seen Mr Beck.
PN3605
You don't know him?---No.
PN3606
Do you have any recollection or any knowledge of any officer of Secure Vote making a presentation statements to Mr Beck or Ms Caddy?---Perhaps that was Frank Nesci gave some commercial presentation to the FSU I guess.
PN3607
Yes. So you have a recollection of that or you have some - - -?---No, I realise that he visited the FSU at some stage but I don't know what happened there and in any event I'm not sure what you mean by scrutineering in the context of some presentation.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3608
All right, well we will come to that. Could I put to you that what Mr Nesci put to the FSU was that - - -
PN3609
MR HARMER: Your Honour, I allowed this to go a fair while. Your Honour, first of all the FSU in this matter has not put on any of this material. It had every opportunity if it wanted to put on material about presentations, about scrutineering telephone votes and all the rest of it, it could. The second aspect of the objection is that this witness has already indicated that he has no idea as to any such presentation or its content, accordingly putting what was the context of the presentation it seems is just repeating something that he has already indicated he has no knowledge of.
PN3610
THE SENIOR DEPUTY PRESIDENT: Yes, the second of your objections is certainly one that I am sympathetic to. He has said that he wasn't there. I am not going to be very weighed by any evidence as to what might have happened that you attempt to get through him.
PN3611
MR PENNING: No, I can understand that, your Honour, so may I ask one or two further questions with that in mind. I appreciate Mr Kidd can't sensibly say whether the propositions I am putting to him about what Mr Nesci may have said are true and correct or not.
PN3612
THE SENIOR DEPUTY PRESIDENT: That is right.
PN3613
MR PENNING: In that context, Mr Kidd, could I put to you that - well, I will put it in this way, that a representation was made that scrutineering of votes was possible through a telephone voting system in that the scrutineering would allow all parties to see votes as they came in and as they therefore recorded how a voter had voted without identifying the voter?---I don't know anything about this.
PN3614
All right. You don't know anything about the presentation that was made - - -?---Nor the content.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3615
I accept that. Could I put to you then that the technology is such that if there is a telephone vote it is possible to be established such that it can be scrutineered on an ongoing basis by seeing the results as they came, that is the number of yeses and the number of nos?---I really don't know the answer to that. I mean my understanding is that there is only a vote tally taken at the end. All that is provided and can be provided initially is turn out figures. In any event - in any event scrutineering per se is not relevant to certified agreement ballots. It all boils down to whether or not the client through diplomacy and discretion will decide whether or not the presence of a scrutineer - I'd rather call them observers, is permitted and then having said that the returning officer has a responsibility to outline to a client the basic parameters that would apply in scrutineering and therefore the client will make a decision what they really want to do in terms of scrutineering, only tempered or overridden by the fact that if the client or even an observer then tried to perhaps undertake some activity that was maybe - either they told you touch ballots, they tried to reorganise things, they attempt to disrupt the process then the returning officer would step in in accordance with the likes of, just using as a parallel, 315 and 317 of the Workplace Relations Act and stop such behaviour.
PN3616
All right. Well - - -?---To all intents and purposes it is a client thing, as I said overridden and tempered by codes of behaviour determined by the returning officer. There is no scrutineering per se in these ballots.
PN3617
Let me go back to my question? Do you have any knowledge as to whether there is a technical capacity to view votes as they come in - - -?---I do not have that knowledge, I do not know.
PN3618
Thank you. Your Honour, could Mr Kidd be shown a document please?
PN3619
THE SENIOR DEPUTY PRESIDENT: Yes.
PN3620
MR PENNING: Now, Mr Kidd, that is the document which is a web site print out in part from the Australian Electoral Commission and the first section in that page, which are marked 1 to 7, deals with industrial election procedures?---Mm hm.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3621
And could I ask you to turn to page 6 of that bundle which is marked 6 of 7?---Mm hm.
PN3622
And you will see that that deals with the question of scrutineers in respect of industrial election procedures?---But there is no provision under the law for scrutineers to be appointed for certified agreement ballots, I accept all of that.
PN3623
I accept that point and let us move that question to one side at the moment. I understand the point that you are making there. Looking at this document as to the role that a scrutineer would perform, could I put to you that there has been no provision made in accordance with the dot points which are effectively on page 6 as to a scrutineering role which the FSU could perform in this ballot?---Suncorp did give them the opportunity to peruse the voters roll and quite frankly I think that was almost a unique approach because again, I harp back, whilst the candidate in an election for a registered organisation - - -
PN3624
Well, could I perhaps pull you up there because can I put to you that you can't really give evidence as to what Suncorp did?---Let me - - -
PN3625
And I am not necessarily asking you - - -?---Well - - -
PN3626
- - - what they did or didn't provide. Well, I don't - - -
PN3627
MR HARMER: Your Honour, just in relation to the correction of the witness there. I understand that the witness was indeed on the receiving end of instructions from Suncorp in relation to that issue of inspecting the rolls - - -
PN3628
THE SENIOR DEPUTY PRESIDENT: That is my impression from earlier evidence.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3629
MR PENNING: I withdraw that statement and make it practical for Mr Kidd to continue that - - -?---Yes, so from my experience that appeared to be a fairly unique approach to permit an observer, I refuse to call them scrutineers, an observer access for perusal of a voters roll. I mean normally the only way that that occurs is in an industrial election as you rightly point out and it is actually a regulation that is relied on to permit this. But candidates are able to get copies, inspect and get copies, of voters rolls for the elections which they are contesting and I did mention to Ms Davis in earlier conversations about this very issue that if you go to the extent of permitting access then the next question follows, do you permit them to take copies, given that there are these kind of parallels for candidates. But I guess, presumably on privacy grounds, Suncorp in its wisdom decided that access was sufficient. As I reiterate, that was really something unparalleled from my experience. Typically scrutineers or observers as I again prefer to call them only have an appearance in the context of a paper based count and it was unusual that they had been given the opportunity to look at the voters roll.
PN3630
Just on that point did you advise Ms Davis, as I understand what you have just said, that it would not be appropriate to allow the FSU any form of access to the voters roll which involved taking any information away from the computer. Is that the advice you gave?---What I indicated was that I just drew parallels with the registered organisation elections where candidates had the capacity to inspect and copy the role that is relevant to them.
PN3631
Yes?---That's all I said to Helen and of course it is their choice then as to what they do to handle it after that. Again, even just providing the opportunity to peruse was really quite unprecedented from my experience. I would have envisaged that the FSU could have attended further to observe a help desk or the like if they desired to, but they I understand decided themselves that there was, I think you used some words in a letter that it was futility in attending. So they didn't attend further.
PN3632
Did you advise Ms Davis that there should be a limitation on the FSUs access to the eligible voter's roll?---No, I didn't. I just had indicated to her - I must admit, again I was surprised that access in any form had been permitted and then I just went on to mention to her the parallels for those candidates.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3633
Well, was it your view that no access should have been permitted?---Well, I was just surprised that's all. I wouldn't say that - I wouldn't argue for it or against it, I was just surprised because, again, it was unprecedented from my experience.
PN3634
Could I put to you that Suncorp wrote to the FSU after a dispute proceeding was raised in this matter in the Commission and said that it had no objection to - well, I will ask the question if it is considered unfair to the witness I will show him a letter which that is on.
PN3635
MR HARMER: Your Honour, I think that would be the appropriate course to actually put the letter to him if there is going to be questions on it.
PN3636
THE SENIOR DEPUTY PRESIDENT: It is simpler.
PN3637
MR HARMER: Yes.
PN3638
MR PENNING: May I approach?
PN3639
THE SENIOR DEPUTY PRESIDENT: Yes?---I've got lots of stuff here.
PN3640
Yes.
PN3641
MR PENNING: I am showing Mr Kidd - - -?---Yes, I've seen this.
PN3642
- - - annexure F to the witness statement of Debra Hannan, dated 22 January 2003 which is exhibit P14 and I am taking Mr Kidd to the fifth paragraph on the first page of annexure F which states in part that Suncorp has no objection to FSU participating at its own expense as a scrutineer in the electronic collation of the vote. Do you see that?---Mm hm.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3643
And then that paragraph goes on to say:
PN3644
FSU will have access to the list of eligible voters solely for the purpose of acting as a scrutineer on the ballot.
PN3645
Do you see that?---Mm hm.
PN3646
In the context of that statement and that representation, Mr Kidd, from Suncorp do you have any understanding of what the role was intended to be of a scrutineer?---We were informed that they could peruse the voter's list and not make notes of the voter's list, but that's really all they could do in terms of access to the voter roll. I did broach the issue with Helen, I believe, about post-ballot commencement perusal or observation activities, but we really didn't come to any firm conclusion about that because of course it's a telephone ballot, there's, you know, no paper count available of for observation from my understanding it's certainly done in New Zealand anyway. So the count was conducted electronically and I, like the client and also like the FSU had to wait until the ballot closure to get the details of the results.
PN3647
All right. Could you then look back at the document which I have taken you to before which is the Australian Electoral Commission document which describes the role of the FSU - the role of - - -?---Scrutineer.
PN3648
- - - a scrutineer and could I put to you that in terms - - -
PN3649
THE SENIOR DEPUTY PRESIDENT: Mr Penning, I should stop you. I have read that document and it specifically excludes certified agreements from its compass, both the documents, the Industrial Elections Procedures and the Advice to Guide to Organisations Registered Under the Workplace Relations Act. And I think that in view of the detailed nature of the line of questioning it is improperly based on that document when we are dealing with a certified agreement.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3650
MR PENNING: Yes.
PN3651
THE SENIOR DEPUTY PRESIDENT: They are dealing with elections.
PN3652
MR PENNING: Well, they are, your Honour, and I am limited also in that they are dealing with a paper based or attendance elections.
PN3653
THE SENIOR DEPUTY PRESIDENT: Yes, that is true.
PN3654
MR PENNING: Well, perhaps I will put the question in a more general way. Given the context of this telephone ballot, where there is an offer made to the FSU to be allowed to scrutineer, what do you regard that to mean?---Well, we were - the bounds of that were clearly defined by the client in terms of access to the voter's roll. So for that purpose it was a very clear direction that they couldn't copy or take notes in regard to the list. And then that's what I understand that the FSU after, you know, perusing the list and whatever they did, they left and then there was subsequently advice that after gaining the impression there was little to see, that they wouldn't come back. But again I assumed from my point of view that the door would have still been open, but there would be little to see save for help desk activities, but that would have been useful in some respects because, I guess on reflection because you would have been able to observe that authentication process as well.
PN3655
All right, well let us take - - -?---Taking place, you know.
PN3656
Let us leave the help desk out for the moment. Are you aware that the FSU was prevented from in any way examining the voter roll to determine its composition or the correctness of eligibility to be on that roll?---Well, the list that was at Secure Vote was just a basic database list but without PINs appended. So it would have shown employee number, it would have shown their name and address as listed by Suncorp and that would be that, and a postcode. Now, that's effectively all we got anyway from - we didn't get any other information. Again,
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
I have no information and received no other data pertaining to eligibility of people to be included on the list. Again, that is not my role to determine eligibility. Nothing else was provided, just that bare information and that formed the basis of the database, but of course didn't have PINs appended to it.
PN3657
And you agree that there was no ability for the FSU in respect of the way this system was established to check the votes?---Check the votes or are you talking about electors now?
PN3658
Well - - -?---Are you moving on to votes?
PN3659
Yes, votes?---Yes, well there was no direct method of checking the votes, no at that stage.
PN3660
There still isn't is there?---Well, that would depend on whether or not with a hard copy of the PINs consumed with the time and date stamp and the vote tally with 1s and 2s and date stamps whether or not there needs to be - if there wanted to be some form of reconciliation to verify in fact what occurred is reported and as recorded, then I guess that's a matter for his Honour to decide.
PN3661
Yes?---But the records, the hard copy of the records is available. They're in effect - they really represent the ballot papers, the paper ballots for the ballot because - - -
PN3662
What is this, the computer voting records?---The tally, yes.
PN3663
Yes. But you hadn't seen that?---Sorry?
PN3664
You haven't seen that?---I haven't seen what?
PN3665
The computer voting records?---I have a hard copy of the tally.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3666
Right. Well, you acknowledge that the FSU hasn't seen them?---No, and nor of course has Suncorp. I have, however.
PN3667
And nor has the Commission?---And nor has the Commission.
PN3668
THE SENIOR DEPUTY PRESIDENT: Well, everybody is in total ignorance.
PN3669
MR PENNING: On a somewhat different point, but just in relation to that attendance at the Secure Vote office. The Secure Vote office is at level 2, 18 to 20 Orion Road, Lane Cove?---Road, Lane Cove. Yes, that's right.
PN3670
Right. All right, can I ask you to go perhaps in your statement, Mr Kidd, and I have finished with those other documents that I have taken you to. If it helps to close those up, do that?---Yes. I will ultimately want to go back to one, but we will leave that to the end.
PN3671
I beg your pardon?---I say I'll ultimately want to go back to one, but perhaps we should leave that until later.
PN3672
Could you turn to page 31 of your statement and you make some comments there in respect of a statement of Larry Stevens. And could I take you to paragraph 152 and the last sentence of that paragraph?---Yes.
PN3673
And there you say in respect of your recollection of the inquiry which was made by Mr Stevens to obtain a PIN, that you placed a mark against his name - - -?---There is a typo there.
PN3674
- - - and that signified to you that you had provided him with a PIN?---That's correct. I apologise there's a typo there too, it should be "against".
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3675
Oh, yes. Yes?---Against is no.
PN3676
Is there a log record of the PIN numbers which were provided by telephone?---There would be no such complete record. I decided of my own volition to place a mark against those people I issued a PIN over the phone to, in case I needed to refer to it, but it's, you know, it's not going to be a perfect record. It was more for my own reference and information.
PN3677
Is there no record of the number of PIN numbers, and therefore the capacity to vote, provided by telephone?---Sorry?
PN3678
Is there no record of the number of PINs that were provided by telephone?---To inquirers?
PN3679
Well, yes?---Well, I have a record, but I don't know if Ian maintained one. My records consist of these markings, but didn't ask him to necessarily do that, because the important point was that individuals be appropriately authenticated. We didn't really need to keep another record of which PINs were provided over the phone. We didn't deem that necessary or relevant. The important thing is that the people be appropriately authenticated.
PN3680
All right. And in relation to paragraph 157, and the references which are provided there from the New South Wales Police Association and Caboolture Shire Council in respect of your work, do those references arise in respect of the conduct of a telephone ballot?---No. Obviously the Caboolture Shire Council ballots that we've runs elections, we've run there a combination of attendance, postal, and pre-poll voting. I mean, it's the full gamut of, like, a polling booth election for a State or a Federal seat. The Police Association of New South Wales, that particular one was a postal ballot, I believe.
PN3681
Yes?---Sorry, I'm wrong. The Police Association was an internet ballot.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3682
Right. Neither ballot was a telephone vote?---They weren't telephone ballots, but it was internet and Police Association. It was a hybrid ballot like NRMA in fact.
PN3683
If I could just have a moment? Sorry, your Honour. Now, your Honour, may I approach the witness again?
PN3684
THE SENIOR DEPUTY PRESIDENT: Yes.
PN3685
MR PENNING: Mr Kidd, what I am showing you is - - -?---Election.com's web site stuff.
PN3686
That is right. The Election.com web site, and it is a print out as at 2 January 2003; do you see that?---Mm hm. They haven't updated their web site.
PN3687
Well, I am taking you to one of the pages from that web site, and you will see that in Australia it records the address of Election.com Pty Limited as Level 2, 18-20 Orion Road, Lane Cove; do you see that?---Yes.
PN3688
And you have stated that that is the address of Secure Vote?---That's correct. Obviously they haven't updated their web site, yes, to reflect the change in ownership.
PN3689
Oh, that is your understanding of why that - - -?---That's my understanding.
PN3690
- - - address would be the same?---Yes.
PN3691
And, your Honour, I again approach Mr Kidd and take you to one of the documents in exhibit P17, wherein, as at 8 November 2002, your own email address is recorded as rkidd@election.com?---That's correct. It hadn't been changed over. I was a bit slow in organising that, but it's now richard.kidd@securevote.com.au actually.
**** RICHARD LLOYD RAYMOND KIDD XXN MR PENNING
PN3692
All right. And that has happened since 8 November 2002, has it?---Obviously, yes it has.
PN3693
Thank you, your Honour. No further questions.
PN3694
THE SENIOR DEPUTY PRESIDENT: Very well. Mr Harmer?
PN3695
MR HARMER: Your Honour, could I ask for the indulgence of an adjournment of no more than five minutes, prior to - - -
PN3696
THE SENIOR DEPUTY PRESIDENT: You may. I will adjourn for five minutes.
SHORT ADJOURNMENT [3.47pm]
RESUMED [4.00pm]
PN3697
THE SENIOR DEPUTY PRESIDENT: Mr Harmer?
PN3698
PN3699
MR HARMER: Mr Kidd, you were asked some questions about paragraph 22 of your statement, which refers to duplicate and triplicate entries on the initial voter roll between the - or before the duplication process, and the response to a question as to any concern that that caused for you, you referred to the phrase "alarm bells", I just wanted to ask you in a voters roll of this size, what in your experience is the normal level of duplication, if any?---I would have expected that it would be a significantly smaller number in fact. I mean, perhaps 10, 15, but 43 was high.
**** RICHARD LLOYD RAYMOND KIDD RXN MR HARMER
PN3700
Yes. And when you used the words "alarm bells" can I just ask you to clarify what was your extent of alarm or concern?---Obviously if we see some, you know, issues with the data base of potential problems then we just obviously have some concerns that all is going to be kosher, because again I'm effectively at the mercy of a client, and, I mean, we draw their attention to it, and obviously in this particular instance when you looked at the duplicates you could see that the people concerned, the employees concerned had been, for whatever reason, listed in a couple of different blocks of the relevant groups that were submitted to us. So that may have happened through clerical error or - I don't know how it happened, but I just would obviously have some concerns that, you know, you hope and you pray basically that the list that's provided is a reliable one and contains only those people who are eligible to vote.
PN3701
And did you have cause to say anything further to Suncorp about the integrity of the roll at that time?---Once we'd sorted out the duplicates, no, not really. We always will find that there might be the odd addition or two. I think in fact from the ballot I conducted in March 2002, which was a postal ballot, I think there were about 2060 votes, we had something like five additions, five or six additions added to that voter roll, and from memory there were two deletions. So, I mean, the numbers were reasonable, but the duplicates just seemed a little high at the time. I think, you know, they were obviously picked up. That was the important thing. We referred them on to Suncorp so that they could check them out, and that matter was resolved.
PN3702
And when you say people turned up in different - were duplicated in separate groups, are you referring to they turned up on more than one of the spread sheets that you were provided?---Yes, they did. Some of them did.
PN3703
I see?---And a couple of them, from memory, were on the same spread sheets as well.
PN3704
I see?---Some, an indeterminant number.
**** RICHARD LLOYD RAYMOND KIDD RXN MR HARMER
PN3705
There was also some questioning about certain employees who were found to be redundant - this is in relation to paragraph 26 of your statement?---Mm hm.
PN3706
I just want to ask you in relation to your experience with certified agreement votes as to whether it is a usual or an unusual occurrence for there to be changes to the role relating to terminations or recruitments or leave or things of that nature?---No, no, that is quite common and as I have just mentioned I think we had two deletions in the March 2002 ballot so - and we had an equivalent number this time.
PN3707
Now, in relation to paragraph 29 of your statement you were asked a series of questions - it relates I guess to paragraphs 28 and 29, about the notion of tracing votes and specifically you were asked over a period of time questions about the existence of any contractual provision which specifically stated prevention of the tracing of votes. Do you recall that line of questioning? Can you tell me in relation to any of the ballots that you have conducted, have there existed any express contractual provision addressing the inability to trace votes?---No, there hasn't been.
PN3708
Right. And can you tell me this, is it the case that there are certain standard aspects of a returning officer's role that that returning officer would carry into any particular ballot or election?---Absolutely.
PN3709
And in relation to this issue of preventing tracing of votes, could you advise whether or not that is any part of the standard role if you like of a returning officer?---It is basically an ethical thing and as I've indicated a few times today the person's vote is something that is sacrosanct and when you've worked in that field for a long period of years you come to realise just how important that is and I don't think the people outside the likes of an electoral commission or my own role would even perhaps understand that that could be the case. On many occasions throughout my career I would have had to assist people in voting. Of course you then gain some awareness as to how that particular individual has voted but even if it is because they have some physical incapacity or impairment and you need to complete their ballot paper for them, you always ensure that the
**** RICHARD LLOYD RAYMOND KIDD RXN MR HARMER
due protocols are covered and that, you know, every possible attempt is made to ensure that that person's vote is secret and remains so - and so it is with all these people who voted in Suncorp. Their vote is sacrosanct and I would never, ever want such details to be possibly made available to anybody, it doesn't matter who it is - so, you know, there is the opportunity to determine how they might have voted.
PN3710
You were asked some questions about discussions between yourself and Ms Davis concerning this issue of tracing votes and I think some questions as to whether that was identified as an issue at the outset or before the commencement of the ballot. Do you recall that?---Yes.
PN3711
Now, can I ask you, as best you can recall, what was the first occasion on which you discussed that issue with Ms Davis?---When was the first?
PN3712
Occasion, what was the first occasion on which you discussed that issue of tracing with Ms Davis?---Look, it must have been in one of our early discussions but I really don't have an absolute clear recollection of it.
PN3713
And so when it specifically arose in relation to these 55 employees was it the case that you had had prior discussions concerning the issue of tracing?---The 55 employees, notification about those just turned up on my desk on the 18th. I had had no - I am wrong there, I think there that Helen may have indicated to me that they had discovered the potential for 55 odd people and, you know, what would happen with the secrecy of their ballot and I think I more or less just indicated to her that that secrecy would never be sacrificed. I mean I don't remember the precise words or anything like that. But then an indication turned up, a firm indication turned up in the form of a letter. I think initially Helen sent me some sort of an email and the email was truncated in its format and it never contained all the detail about the issue and then I got a letter the next day indicating that there had been 55 people that they had apparently identified as redundancies and the question was put in the letter about the potential for tracing them but I never responded verbally or in writing to the letter because by the time I got around to doing that it was too late to do anything with 55 in any event, whether or not you just investigate them. And then the ballot was closed and the result was available and the result was obviously such that it didn't really impact on the 55. I'm sorry that my recollection about that is a bit hazy but I don't just have no better recollection.
**** RICHARD LLOYD RAYMOND KIDD RXN MR HARMER
PN3714
Okay. Look, you were asked some questions in relation to annexure 40 to the statement of Helen Davis and specifically pages 20 and 21 of that annexure. Do you still have that material with you?---Yes, I do.
PN3715
And if I can just take you back to page 18 of that document, you will see that it is headed up, "13 voting information from Secure Vote Pty Limited." Do you see that?---Is it 12 - the one I had says 12.
PN3716
I see. So that is on page 18, the heading there?---It goes over to page 20 on the version I have.
PN3717
Yes?---Yes, it is the - I know which document you are talking about.
PN3718
Okay. And this is the one that on page 21 is signed off by you?---It has my name on it, yes.
PN3719
Now, you were asked a number of questions about this document and its contents. I am jut giving you an opportunity to view it again. Can you advise the Commission as to what role if any you had in the compilation of that material?---Obviously essentially I owe everyone an apology for this because I'd even forgotten I had written the document. It was obviously done in the early stages of arrangements and it had slipped my attention so indeed the document was prepared by myself. The only thing I would note after having a close look at it that in the heading, "Is my vote confidential," I think there are just a few words there that actually were not mine. It says:
PN3720
Ensure a fair ballot of one vote per person.
PN3721
I don't recollect that phraseology there but the other material - I mean it was a document that I did prepare and I apologise for forgetting about the document in fact. I sincerely regret that.
**** RICHARD LLOYD RAYMOND KIDD RXN MR HARMER
PN3722
THE SENIOR DEPUTY PRESIDENT: Mr Kidd, when you say the document do you mean all of the document that appears as item 13, "Voting information from Secure Vote Pty Limited." It goes over about three or four pages?---Well, in mine it is headed number 12 but yes:
PN3723
Voting information from Secure Vote ...
PN3724
There is 1, 2, 3 pages.
PN3725
Yes?---Yes.
PN3726
You authored the whole document subject to those comments you have made about the, "Is my vote confidential"?---Yes and - well, I believe I wrote that but what I'm wondering now is I don't remember the phraseology, "Ensure a fair ballot of one vote per person." That's under the heading, "Is my vote confidential?"
PN3727
Yes?---I don't recall that particular phraseology but the rest - - -
PN3728
The document it self is yours?---It's mine.
PN3729
Yes?---I apologise for that. I'd just even forgotten about the document.
PN3730
MR HARMER: All right. Could I take you to paragraph 42 of your statement which is under the heading, Transfers Group?---Yes
PN3731
You were asked some questions about the transfers group and the fact that that group had three days in which to cast their vote as compared to approximately eight for the rest of the ballot participants. Do you recall that?---Yes.
**** RICHARD LLOYD RAYMOND KIDD RXN MR HARMER
PN3732
Could I just ask you what is your view of the impact, if any, of that disparity in the voting period?---What has been - what were the last few words?
PN3733
What would be the impact, if any, of that disparity in the voting period between the transfers group and - - -?---I don't believe there is any disparity because again the system is just so accessible and provided - I mean people have an opportunity not only to vote at work but if they're out in their boat fishing and they had their mobile phone they could vote, if they were at home watching TV they had the opportunity. So I don't believe that the mere fact that the window of opportunity was a lesser period has any impact in a negative way on the ballot or its outcome.
PN3734
Can I ask you this? In relation to periods for voting, are you aware of what the period for voting was in the Commonwealth Bank ballot?---The period of voting in the Commonwealth Bank as I recollect was 12 hours.
PN3735
Okay. And that was again a telephone ballot, was it?---It was a telephone ballot, five separate agreements.
PN3736
And you were involved in that ballot were you?---Yes, I was.
PN3737
Was your role returning officer?---Yes, I was.
PN3738
You were asked some questions regarding the provision of information by Election.com to Secure Vote about the actual number of votes recorded per day. Do you recall that?---The number of votes recorded per day at turnout?
PN3739
Yes. And as I took it down you indicated that that information was not provided initially. I just wondered, are you able to clarify when the provision of that information commenced?---Not absolutely from recollection. I think it was like a day - it wasn't the first day of the ballot, it must have been the second or even the third day of the ballot. I really don't - I have to go and check the files and the like.
**** RICHARD LLOYD RAYMOND KIDD RXN MR HARMER
PN3740
Okay?---It wasn't the first day, I don't believe.
PN3741
Thank you. Now, you were asked a question about whether you had had in a theoretical sense concern about an employer being able to promote a case during the course of a ballot; do you recall that?---Yes.
PN3742
And you made some observations along the lines of, again just as I took down, unless there was misleading conduct that caused a person to cast a vote in an unwitting way, you wouldn't see that electioneering as impacting on the integrity of the ballot and I appreciate that is my rewording of what I understood you to put. I just wanted to ask you what is your basis for saying that?---Well, I mean obviously there are some significant Court precedents that relate to industrial elections and which deal with electioneering per se. They also, there are irrelevant precedents that apply to Parliamentary elections, but the ones which I was really thinking about were industrial election based precedents and it is a very difficult test to prove that some document information causes a person, as I said virtually unwittingly, to mark or select in the case of an electronic ballot their vote, but because they were misled to do so because of some documentation or information.
PN3743
Now, you are say in your experience that applies to Parliamentary elections and industrial elections?---And unfortunately I can't recall the particular precedent, I should have written it down for you, but that is in the context of industrial elections. The things most akin to these really.
PN3744
And so can I ask you this, if you based on your experience with elections were being asked to assess the integrity of a ballot for a certified agreement, is that the approach that you would recommend should be adopted?---That's right.
**** RICHARD LLOYD RAYMOND KIDD RXN MR HARMER
PN3745
What do you understand to be the rationale for that approach?---Well, so long as we think of the entire organisation of this ballot, so long as the database is not fundamentally flawed, or fatally flawed we have a good margin in the ballot. Unless it's proven that either myself or Stephen or Wynton are crooks and that we've manipulated the vote from the information that was provided to us, then all the dialogue, all the banter, all the dialectic that's obviously been floating around in respect of the lead-up to this ballot, again unless it can be proven through those sorts of legal tests that there has been an impact on the - everything is so flawed that it's going to affect the result of the ballot, then the ballot result is fine, it should stand. But it depends on those few things. Whether or not the database is fundamentally flawed; that all the dialectic didn't, you know, mislead someone into casting a ballot in a way that they never intended to do so, virtually unwittingly; and if there's no other issues with the ballot then I mean how could it be overturned? How could it be voided?
PN3746
Now, could I take you to paragraph 73 of your statement you were asked some questions about your quoted extract from your report there, where you address the 55 employees and the robustness and validity of the ballot?---Mm hm.
PN3747
And you were asked questions about what your view would be if the majority was less than 55 or a little more than 55; do you recall that?---Yes, I do.
PN3748
Can you inform the Commission is there any mathematical equation or any mathematical point which you would draw at which that number of 55 would impact on the robustness of the result?---I can indicate from experience, I mean there's no magical figure or anything really, but in the context of Parliamentary elections now, I'm not really talking about exactly certified agreement, but the way we used to consider whether we would do a recount would be if the margin was less than 150 votes between a candidate. That was like a policy in the AEC. So unless the margin was less than 150 and we're talking about an election of probably 70 or 80,000 voters, unless the margin between a candidate was less than 150 then we wouldn't even accede to a candidate's request for a recount. Or, alternatively, the returning officer would decide against it in any event. So that was the margin for 80,000 voters and they used to get about a 90-odd per cent poll in a Federal election. It is a large number of voters, the margin was 150. That was the yardstick that was used. We have a margin of 390-something whatever it is. So I see this as being - again, unless there is some absolutely fundamental flaw with the voter's roll then the result should be robust and stand.
**** RICHARD LLOYD RAYMOND KIDD RXN MR HARMER
PN3749
Thank you?---Got a good overall turnout too in this particular ballot. I mean the average in a certified agreement ballot - - -
PN3750
MR PENNING: Objection?---Sorry.
PN3751
That submission from Mr Kidd doesn't arise from the question, your Honour.
PN3752
THE SENIOR DEPUTY PRESIDENT: No, that is true.
PN3753
MR HARMER: Mr Kidd, just out of interest, just while we are on the general vicinity of that issue?---Yes, I'm sorry about that.
PN3754
MR PENNING: Maybe a catch-all question, is there anything else you would like to volunteer?---In traditional postal certified agreement ballots what you tend to find is that you have just over 50 per cent to usually around 65 per cent of people participating. Now, we have on record of course higher participation rates, some of those relate to attendance based ballots where you virtually corral people and you'll have voting set over a period of shifts and the like, and Suncorp even had one that was in the high 90s because it was the way it was run like that. In DEETYA a ballot I ran in the AEC that was a record postal ballot of 78 per cent. That was a record in the AEC at the time, I mean I have no idea what it is now, but if you got in the high 70s in any ballot you are doing well.
PN3755
MR PENNING: Your Honour, I will actually rise to object because there is a limit to what is put in re-examination.
PN3756
THE SENIOR DEPUTY PRESIDENT: I agree. It is irrelevant in any event.
PN3757
MR HARMER: Yes, okay. Look, thanks for that Mr Kidd. You were asked questions in relation to paragraph 77 of your statement and specifically the last sentence. And the phrase that your only interest was to ensure that any election or ballot is managed efficiently, accurately, reliably and with integrity; do you recall those questions?---I do.
**** RICHARD LLOYD RAYMOND KIDD RXN MR HARMER
PN3758
And specifically you were asked some questions about a potential tension or conflict with your commercial interest; do you recall that?---Yes, I do.
PN3759
I just want to ask you as to the commerciality of you delivering a ballot result that wasn't managed efficiently, accurately, reliably or with integrity?---The commercial reality of that?
PN3760
The commerciality of it?---Sorry?
PN3761
The commerciality of it?---The commerciality of not running it properly? Well, it would be hopeless wouldn't it. We'd be out of business.
PN3762
And in that sense do you see any tension or conflict between your commercial interest and what you have indicated?---No, I do not. I see absolutely no conflict of interest there. I ran a ballot for Asset Services, spotless - - -
PN3763
MR PENNING: Well, objection. Same objection as before, your Honour.
PN3764
THE SENIOR DEPUTY PRESIDENT: Yes, I think at this point of the day, Mr Kidd, it is probably best just to answer Mr Harman's questions?---Thank you.
PN3765
MR HARMER: Mr Kidd, you were asked questions about Secure Vote and a potential relationship with Election.com going to a number of issues including personnel, directors and addresses and things of that nature. Could I just take you to paragraph 6 of your statement?---Paragraph?
PN3766
Six of your statement. And specifically the last two sentences where you refer to Secure Vote acquiring the Australian operations of Election.com; do you see that?---Yes.
**** RICHARD LLOYD RAYMOND KIDD RXN MR HARMER
PN3767
You then go on to say that it was by acquisition of assets, there was no purchase of shares in Election.com. Could you just explain what if anything is the ongoing relationship between Secure Vote and Election.com arising from that transaction?---Essentially no relationship. The only thing that has recently occurred is that I understand Secure Vote has had some - has made a further purchase regarding software from Election.com in the States, but other than that I have no knowledge of any further arrangements financially or otherwise regarding the company. As far as I'm concerned and as I understand there is no relationship between the two.
PN3768
Now, Mr Kidd, you were asked a number of questions about your discussions with Helen Davis and the commercial arrangements with Suncorp. Can I ask you this: during the course of your discussions with Ms Davis did she at any time say or suggest anything to indicate that she or Suncorp as an entity wanted anything other than a clean ballot to be conducted?
PN3769
MR PENNING: Objection, that is a leading question, your Honour.
PN3770
THE SENIOR DEPUTY PRESIDENT: It is an admissible question.
PN3771
MR PENNING: Suggesting the answer.
PN3772
MR HARMER: I press it, your Honour, in the context of what has been put to this witness.
PN3773
THE SENIOR DEPUTY PRESIDENT: Yes, I will permit it. Could you repeat the question, please?
**** RICHARD LLOYD RAYMOND KIDD RXN MR HARMER
PN3774
MR HARMER: I probably can't. Mr Kidd, you were asked questions about your discussions with Ms Davis, and I was asking you as to whether during the course of those discussions Ms Davis had said, or suggested anything to you that indicated that she, personally, or Suncorp as an entity, had any desire for anything other than a clean ballot fixed up?---I don't believe that she's ever said precisely those words, but I know in some correspondence with Helen that she has indicated to me, just through some of the prose, that obviously that's a concern of hers and of Suncorp's, and there was never anything else intended. It would only be a proper, fair and secure ballot, so that the relevant employees could have their say.
PN3775
Okay?---I've just noticed in the last few days looking through correspondence the evidence of that.
PN3776
You were asked some questions about scrutineering. Can I ask you this, in the Commonwealth Bank ballot that you referred to, did the FSU have a role as scrutineer?---I believe that there was no approach made.
PN3777
Okay?---They didn't have a scrutineering role.
PN3778
In any of the telephone ballots that you have been involved in has there been a role of scrutineer for any entity?---Only the Suncorp one.
PN3779
Right?---None for ING.
PN3780
Okay. Now, you were taken to annexure F of the statement of Ms Hannan; do you still have that with you, which is the letter from GIO to Ms Hannan?---I'm familiar with the letter. Yes. I am aware of the matter.
PN3781
Well, you were taken to the sentence that indicates that Suncorp has no objection to FSU participating at its own expense as a scrutineer in the electronic collation of the vote; do you recall that?---Mm hm.
**** RICHARD LLOYD RAYMOND KIDD RXN MR HARMER
PN3782
Can I just ask you, as scrutineer to the electronic collation of the vote in a telephone vote, what do you understand that to mean?---Well, there would obviously be limited opportunity to observe anything that's happening in the process of the ballot. It would more go to, I guess, any reporting after the conclusion of the ballot, or, as I think I mentioned earlier, if the FSU had remained in attendance, then through help desk activities, at least would have observed the authentication exercises for people who were trying to get their PINs and that would have at least lent some weight and, you know, evidence of the fact that the processes that we followed do that, because they would have observed them first hand.
PN3783
Did the FSU make any request to observe help desk activities?---I don't believe so.
PN3784
Did the FSU make any request to scrutinise the collation of the vote, the outcome, the rolls, anything of that nature?---Sorry?
PN3785
Did the FSU make any request to you to scrutinise the outcome or the collation of the vote?---Not the collation of it, just the outcome. I mean, obviously Debra approached me to find out what the result was, but because of the client relationship obviously my response was to her as indicated, that I wouldn't be able to advise her of those results, that she would need to find out through Suncorp what the result was.
PN3786
Did the FSU, in relation to the result, make any request to you to scrutinise how that result was compiled?---No, they did not.
PN3787
Just to be clear on that, you have indicated that you would have hard copy documents from which clerically the result could be recreated; is that correct?---It would be painstaking, to say the least.
PN3788
Right. And - - -?---And I don't know that you could actually put it all together anyway.
**** RICHARD LLOYD RAYMOND KIDD RXN MR HARMER
PN3789
And would that painstaking task - would that be all that is available to the FSU for them to check the vote?---Well, I mean what we need to be clear on here is that we have a list of unconsumed PINs, a list of consumed PINs with a date and time stamp. We have a tally, we'll call it, a vote tally, which shows a list of all the ones, a list of all the twos, but the time and date stamp is scrambled, so that you can't readily match one date and time to the other. But on top of that you would then also need to additionally go back to the voter list, which shows employee number, address and a PIN number, and the difficulty is - I'm not about to show PIN numbers to either Suncorp or to the FSU, or anyone else for that matter, but that would be the only possible way that you could link up. You have to link up those three pieces of data in a manual way, but you could see the votes, as it were, the representation of the paper ballots in the vote tally. I mean, there's no difficulty showing anyone that here and now, I guess, because it's just got a date and time stamp on it. There are no PIN numbers so, I mean, there's no reason why that - - -
PN3790
THE SENIOR DEPUTY PRESIDENT: It would have the number one on it or number two?---Yes. It'll just show a list of all the ones, a list of all the twos, and the date and time stamp, and the total of all those ones is the total of the yes vote. The total of all those twos is the total of the no vote, and of course, as I've indicated throughout authentication with employee number and PIN, which was done on purpose to make the ballot more robust, rather than just send the PIN out to an individual. There's an extra level there. That reflects, as it were, the - you can imagine in a postal ballot that would be the declarations that you've admitted to the scrutiny, the PINs that were consumed, because people had to validated and authenticated to get to that stage, and the unconsumed PINs represents all your non-voters. So you know the three up in terms of numbers because it all balances out. It's just that I would obviously have a reluctance - well, I wouldn't do it, produce the other list that shows PIN numbers against particular eligible voters.
PN3791
MR HARMER: Could the FSU had scrutinised the vote by attending Election.com in New Zealand and/or Panztel and viewing the programming and how the actual data was processed in this manner?---Look, it's difficult for me to say. I imagine that that would be possible, but, again, I'm not a technologist, so I assume that would have been possible, yes.
**** RICHARD LLOYD RAYMOND KIDD RXN MR HARMER
PN3792
Did the FSU make any request to you at any time to scrutinise the vote to that extent?---No. No. I think - I'm not sure. Some made a comment - oh, I might have read it, I think. I think I read it in some - I don't know where I read it, but it was some publication or whatever, where there was some disquiet about perhaps the potential of the ballot being run out of New Zealand, but no, that's what I was thinking of. There was some brochure publication that mentioned a little disquiet about the New Zealand thing.
PN3793
Can I ask you this, you referred to a - going back to the daily report of the number of votes cast, would it be, in your experience, normal for a scrutineer to have access to that material?---Well, I must admit I didn't really have a problem with that. I discussed this issue with Helen, as I recollect, and, I mean, my - I think I said my personal view was I don't have any objection to the provision of that information. But again it was Suncorp's call and because it's not anything that really has a, you know, a - it's not an integrity thing. It's not going to affect the ballot as such. I mean, I would have been happy to do that, but where there's a decision, or a judgment has to be made, and there is some integrity element to it, then that's when we need to think long and hard about it, and you make a decision based on your knowledge, your experience, and where you draw the line. I had no problem - to answer your question I had no problem with FSU getting details of that turn out, but again it was Suncorp's call, and initially their response was that I wasn't able to provide it, and that Debra would need to then perhaps go back to them. But I think I've seen some other correspondence where, indeed, some of the figures were passed on, but, you know, I didn't have a problem with passing on turn out figures. I don't see any issue with that at all.
PN3794
Thank you, your Honour. I have no further questions.
PN3795
PN3796
MR HARMER: If the Commission pleases, the final witness we seek to call today and I hope it is going to be fairly short evidence, your Honour, it is Mr Ian Parker.
PN3797
PN3798
MR HARMER: Thank you, Mr Parker, would you please state for the Commission your full name?---Ian Richard Parker.
PN3799
And your current residential address?---92 Prospect Street, Erskineville.
PN3800
And your current occupation please?---I'm the ITS Manager of Secure Vote.
PN3801
And for the purpose of these proceedings have you prepared a statement?---I have.
PN3802
Do you have a copy of that statement with you?---I do.
PN3803
Do you have any corrections that you would like to make to that statement at all?---No.
PN3804
So are you satisfied that it is true and correct in every respect?---Yes, I am.
PN3805
If the Commission pleases, I seek to tender the statement of Ian Parker?
PN3806
THE SENIOR DEPUTY PRESIDENT: Any objection?
PN3807
MR PENNING: No objection.
PN3808
**** IAN RICHARD PARKER XN MR HARMER
PN3809
PN3810
MR PENNING: Mr Parker, I will ask you certain questions principally in relation to the help desk facility?---Yes.
PN3811
Could I put to you that the evidence given by Mr Kidd was that there was no system in place for the formal logging of inquiries to the help desk. Would you agree with that?---That's correct.
PN3812
There is thus no record of the total number of inquiries to the help desk?---Only my notes.
PN3813
There is no formal record of the nature of the issues which were raised with the help desk other than notes you may have personally retained?---That's right.
PN3814
There is no record of calls being recorded from particular office locations or geographical areas in respect of the help desk?---No.
PN3815
I am taking you to paragraph 8 of your statement and specifically subparagraph (a). Could I put to you that there is no record nor system put in place to record the inquiries that were raised in relation to non receipt or the loss of PIN?---Only the notes that I made.
PN3816
So there is no formal system or record of the names of persons who claim to have lost the PIN?---No.
PN3817
And there is no record of the areas where persons worked or lived who claimed to have lost a PIN?---No. I've had some but not all.
**** IAN RICHARD PARKER XXN MR PENNING
PN3818
In relation to the technical difficulties that you referred to at subparagraph (d) of your statement, could I put to you that there is no record for example of the composition of persons who reported to have technical difficulties with the system?---No.
PN3819
So there is no record of the age of persons who reported having technical difficulties?---No.
PN3820
No record of the home locations or workplace locations of those people?---No.
PN3821
Could I put to you as a general proposition that older people voting in this ballot may have experienced difficulty with the use of the telephone voting system?---I wouldn't - I really couldn't hazard an opinion at that. I can't see that.
PN3822
THE SENIOR DEPUTY PRESIDENT: They would still be at work such people.
PN3823
MR PENNING: I beg your pardon?
PN3824
THE SENIOR DEPUTY PRESIDENT: They would still be at work such people. They couldn't be that old. It is a subject on which I am - - -
PN3825
MR PENNING: There is no pointed reference in my question at all, your Honour.
PN3826
Do you have any information in relation to people in particular work place locations with different telephone systems having experienced difficulty or an inability to cast a vote?---Only what I have mentioned in my statement.
**** IAN RICHARD PARKER XXN MR PENNING
PN3827
And that is in respect of older style telephone systems?---I couldn't say what the style of telephone systems it was just people from work places were having difficulty.
PN3828
Right. Would it be your understanding that that was potentially because of the existence of older style PABX telephone systems in various work locations?---I'm not sure if it's older PABX systems but I know of certain - the functions of PABX systems and how they actually send tones down phones, I know of problems that have occurred because of it.
PN3829
Right. Is there any data in relation to that question of - or any record kept of difficulties that were experienced in respect of use of particular telephone systems?---No. I was - in this particular matter it was a case that I couldn't replicate it on numerous telephone systems that I used - oh, actually not numerous, three - the operators were having difficulties.
PN3830
So in relation to paragraph 10 you give information in relation to the release of PIN numbers to persons who made inquiries. Is it the case that there is no record of the number of PIN numbers which were supplied to persons who telephoned the help desk?---As in the exact number of people who called?
PN3831
Yes?---No, not an exact number.
PN3832
There is no exact number or record of the persons who called?---The approximation - - -
PN3833
I'm sorry, to whom a PIN number was allocated?---Yes, to whom a PIN number is - I don't understand the question I'm sorry.
PN3834
Well, is there an exact number or an exact record of the number of persons who were allocated a PIN number when they telephoned the help desk?---As in advised their PIN number?
**** IAN RICHARD PARKER XXN MR PENNING
PN3835
Yes?---Yes. Not an exact number, no - as near enough as approximation as I have from my notes.
PN3836
Yes. If a caller telephoned the help desk and could identify an employee number and an address was that employee then provided with a PIN number?---Yes, they were.
PN3837
And that employee then had the capacity to vote?---Correct.
PN3838
And was that the only criteria that were required of a person who telephoned the help desk, that is that they identify a pin number and an address?---Yes, their employee number and their address, yes.
PN3839
Yes, I am sorry, their employee number and an address?---Correct.
PN3840
In paragraph 17, if I could take you over the page, you there refer in the second sentence to persons experiencing difficulties calling on a different handset. When you give that information is that partially in response - partially in development of the point you were making about different tone systems in different types of phone systems - - -?---Correct.
PN3841
- - - playing different messages?---Correct. Moving to a different phone often solved their problem.
PN3842
And in paragraph 18 you talk about seeking to overcome technical problems for a potential voter logging into the system, in the context of dealing with those problems did you have any contact with Election.com in New Zealand?---Only to alert them to a potential problem and to double check their systems. I couldn't recreate the problem.
**** IAN RICHARD PARKER XXN MR PENNING
PN3843
And how did you do that? How did you alert them to a problem?---Sent them usually an email.
PN3844
How often did that occur?---I couldn't tell you. It would be only the one incident I think when I first come across one of these - I think it was the second caller and I thought oh, it wasn't a unique call.
PN3845
What, in that the same problem was being reported?---Correct, if it had been repeated.
PN3846
If the same problem was reported a second time and that was the same issue that had been raised with the first caller?---Correct.
PN3847
And that same issue was then subsequently raised on other occasions?---Correct.
PN3848
And your response was to send an email and contact Election.com in New Zealand?---Correct.
PN3849
And who did you deal with there?---Mr Kirkpatrick.
PN3850
Did you have ..... with Panztel Pty Limited?---Not directly.
PN3851
Did you have any contact via the telephone or email with Panztel?---No.
PN3852
Or with any employee of Panztel?---None.
PN3853
In paragraph 19 you describe an approach used on some occasions of seeking assistance to people from the help desk when they telephone in?---Mm hm.
**** IAN RICHARD PARKER XXN MR PENNING
PN3854
You say in the second sentence, "Several callers voted while I was still on the line." Can you say how that occurred, did they - - -?---They were using another handset and calling me on a second phone.
PN3855
How many - do you have a record of how many people that occurred with?---No, I don't.
PN3856
At paragraph 20 towards the end you referred to people, as I read it, voting by fax machine from their workplace. Can you explain how that occurred. I take it you don't mean in a traditional sense, that they didn't fill in a fax form and send it somewhere?---No, they didn't. Fax machines are usually not connected via the PABX system, they use a separate telephone line, so usually don't go out through the same system. They also have quite different handsets, if you have a telephone on the fax, it's usually a completely different type of handset than what they've got on their desk. So if you're looking for a different phone in the office, the fax is usually it.
PN3857
I see, can you use the telephone on the fax like a normal telephone?---Correct.
PN3858
But it is through a different system?---It usually either bypasses the PABX system or it's a completely a different physical unit from the normal desk telephone.
PN3859
It is not a fax as such in that respect?---No, you're using it as a telephone.
PN3860
All right. And then you go on to describe that issue and that problem somewhat further in paragraph 21 in relation to the use prompts of the PABX telephone systems. Do you have any knowledge about the spread or use of the PABX systems throughout GIO Australia network?---No, I don't.
PN3861
You appreciate GIO Australia has many smaller offices in a wide range of areas including throughout the country and regional towns as well as in the city?---I do.
**** IAN RICHARD PARKER XXN MR PENNING
PN3862
And would it be your expectation that there would be a greater incidence of PABX systems in those country offices or smaller offices?---It varies, some would have older systems, some would even have newer systems. I wouldn't have a clue.
PN3863
Has there been any subsequent investigation to your knowledge of the problems with the use of systems that may have been associated with PABX in this voting ballot?---Not with this one. I, like I said, I went through a range of tests on my own, but could not recreate the issue at all.
PN3864
So there was no further testing during the course of the ballot about that problem?---You would have to ask Mr Kilpatrick. You would have to ask Mr Kilpatrick whether he did further testing. I did testing on my own, could not recreate the problem, made them aware of the problem. What they did with that, I don't know.
PN3865
Subsequent to the ballot had you had any role in seeking to further investigate that problem?---Not that problem, no.
PN3866
Are you aware of anyone either within Secure Vote or Election.com or Suncorp seeking to further investigate that problem?---No, I'm not.
PN3867
And could I take you to paragraph 32 of your statement where you make certain comments in relation to the statement of Clare Andrews. And do I understand that in paragraph 32 you speculate as to the nature of the problem that Ms Andrews experienced?---Yes.
PN3868
And do you know did that arise from the PABX system problem or older style phone system, or for some other reason?---It appeared to be the problem that I noticed other people having, that they couldn't vote from work PABX systems if they were either going too fast. Like the work systems used did work if the people were methodical about it.
**** IAN RICHARD PARKER XXN MR PENNING
PN3869
So the PABX systems would work on some occasions?---Correct.
PN3870
But not on others?---Correct.
PN3871
Can I just take you back, Mr Parker, towards the start of your statement and you are actually an employee not of Secure Vote, but you are an employee of Security Mail Pty Limited, is that correct?---I am currently on secondment to Secure Vote full time.
PN3872
I see. You remain an employee of Security Mail?---Security Mail.
PN3873
And you retain your position, but in that context you are on secondment at present?---I'm non secondment full time, seven days a week.
PN3874
Seven?---Indeed.
PN3875
Did you participate in earlier certified agreement ballots conducted by Secure Vote for Suncorp Metway?---No, I've been involved in the ING one which I think was after this one.
PN3876
You had no role or participation in the earlier votes which were paper ballots for Suncorp Metway?---No.
PN3877
Have you participated in any previous certified agreement paper ballots?---No, I haven't.
PN3878
For any employer?---No, I haven't.
**** IAN RICHARD PARKER XXN MR PENNING
PN3879
Thank you, your Honour, no further questions.
PN3880
PN3881
MR HARMER: Just one point of clarification. You were being asked questions about difficulties incurred with PABX systems and I think you indicated sometimes they worked, sometimes they didn't. Could you just clarify what was it that determined whether they worked or not?---In going through problems with a number of the people I found that when they were pressing the tones that they were just fairly methodical about it. A lot of people look at these phone systems and key ahead as it were, they dial quite fastly. It appeared on some of these PABX systems for this particular election that - or this vote, that keying fast the tones weren't being sent through correctly and weren't being read by the system.
PN3882
Thank you, nothing further.
PN3883
PN3884
THE SENIOR DEPUTY PRESIDENT: That completes the witnesses that were planned for today?
PN3885
MR HARMER: That concludes today's agenda from our point of view, your Honour.
PN3886
THE SENIOR DEPUTY PRESIDENT: There are a number of matters for next Monday?
PN3887
MR HARMER: Yes, your Honour, including the video conference - sorry, the video facility.
PN3888
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Penning?
PN3889
MR PENNING: Yes, your Honour, that is correct there are a number of issues and probably the only thing to just make a mental note of is the availability for the video facility.
PN3890
THE SENIOR DEPUTY PRESIDENT: On Monday. Very well, I will adjourn these proceedings until 9.30 on Monday morning.
ADJOURNED UNTIL MONDAY, 3 MARCH 2003 [5.04pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
STEPHEN JOHN KILPATRICK, AFFIRMED PN2983
EXAMINATION-IN-CHIEF BY MR HARMER PN2983
EXHIBIT #GIOA 13 STATEMENT OF STEPHEN KILPATRICK PN2993
CROSS-EXAMINATION BY MR PENNING PN2997
RE-EXAMINATION BY MR HARMER PN3209
WITNESS WITHDREW PN3224
RICHARD LLOYD RAYMOND KIDD, SWORN PN3245
EXAMINATION-IN-CHIEF BY MR HARMER PN3245
EXHIBIT #GIOA 14 STATEMENT OF RICHARD KIDD PN3265
CROSS-EXAMINATION BY MR PENNING PN3275
EXHIBIT #P17 BUNDLE OF DOCUMENTS HEADED BY AN EMAIL TO MR KIDD FROM MS DAVIS RE THE CERTIFIED AGREEMENT BALLOT PN3535
RE-EXAMINATION BY MR HARMER PN3699
WITNESS WITHDREW PN3796
IAN RICHARD PARKER, SWORN PN3798
EXAMINATION-IN-CHIEF BY MR HARMER PN3798
EXHIBIT #GIOA15 STATEMENT OF IAN PARKER PN3809
CROSS-EXAMINATION BY MR PENNING PN3810
RE-EXAMINATION BY MR HARMER PN3881
WITNESS WITHDREW PN3884
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AIRCTrans/2003/958.html