Documents pertaining to the 2023 referendum ballot papers
Dear Australian Electoral Commission,
I write to request access to information under the FOI Act.
To ensure a clear understanding of the scope of my requests, I would like to address the ongoing discussions surrounding the definition of a formal vote for the 2023 referendum. Specifically, there has been considerable commentary regarding the validity of 'ticks' or 'crosses' as acceptable voting markings. Therefore, the documents I am seeking are directly related to the 2023 referendum ballot paper.
I seek access to the following:
1. All documents pertaining to the design of the 2023 referendum ballot paper.
This includes, but is not limited to, internal and external communications, drafts, memos, guidelines, and any other pertinent materials. I am particularly interested in any communication between the AEC and external bodies concerning the design, layout, or content of the ballot paper.
2. All documents, reports, evaluations, or assessments carried out by the AEC or external parties concerning the "YES/NO" voting method for the 2023 referendum ballot paper. This specifically includes materials exploring the use of "YES/NO" as opposed to traditional methods such as marking, ticking, or crossing boxes.
3. All documents pertaining to the application of savings provisions concerning 'ticks' and 'crosses' on the ballot papers. This extends to legal advice, guidance, memos, and any other relevant material.
I kindly ask that the AEC interpret the scope of my requests in the broadest possible manner to ensure comprehensive access to the requested information.
Yours faithfully,
CR
Good afternoon,
Acknowledgement of your Freedom of Information Request
I refer to your request for access to documents under the Freedom of
Information Act 1982 (FOI Act) made in the following terms:
1. All documents pertaining to the design of the 2023 referendum ballot
paper.
This includes, but is not limited to, internal and external
communications, drafts, memos, guidelines, and any other pertinent
materials. I am particularly interested in any communication between the
AEC and external bodies concerning the design, layout, or content of the
ballot paper.
2. All documents, reports, evaluations, or assessments carried out by the
AEC or external parties concerning the "YES/NO" voting method for the 2023
referendum ballot paper. This specifically includes materials exploring
the use of "YES/NO" as opposed to traditional methods such as marking,
ticking, or crossing boxes.
3. All documents pertaining to the application of savings provisions
concerning 'ticks' and 'crosses' on the ballot papers. This extends to
legal advice, guidance, memos, and any other relevant material.
We understand your request for documents to exclude duplicate and earlier
draft versions of current documents.
Legal advice – ticks and crosses
On 30 August 2023, the Electoral Commissioner published a summary and
excerpts of the relevant legal advice relating to the formality of a tick
or cross on a federal referendum ballot paper on the AEC website -
[1]refrendum-formality-savings-provisions-legal-advice.pdf (aec.gov.au).
This legal advice is the basis for the AEC’s position on the formality of
a tick or cross on a federal referendum ballot paper.
Noting the scope of your request, we believe the legal advice that has
been published should answer your enquiry.
Referendum ballot paper
In the remainder of your request, you seek documents relating to:
1. The design of the federal referendum ballot paper
2. The “YES/NO” method of voting
Please note, these are not matters that were open to the AEC to consider
as they are legislated by the [2]Referendum (Machinery Provisions) Act
1984 (the Referendum Act).
The design of the ballot paper is prescribed in section 25 and Schedule 1
– Forms of the Referendum Act. These provisions specify the text of the
instructions to appear on the ballot paper, the layout of the ballot paper
and the colour of the ballot paper.
The “YES/NO” method of voting is prescribed, both on the legislated form
in Schedule 1 – Forms, and in section 24 of the Referendum Act, which
states:
The voting at a referendum shall be by ballot and each elector shall
indicate his or her vote:
(a) if the elector approves the proposed law—by
writing the word “Yes” in the space provided on the ballot paper; or
(b) if the elector does not approve the proposed
law—by writing the word “No” in the space so provided.
Savings provisions ensure that votes can be counted where the voter’s
intention is clear. These provisions are in section 93 of the Referendum
Act.
Changes to both the design of the federal referendum ballot paper, and the
“YES/NO” method of voting (including savings provisions) would require an
amendment to the Referendum Act. This is a matter for Parliament, not the
AEC.
If this information satisfies your request, please withdraw your FOI
request by responding in writing.
If you would like to proceed with your FOI request, please note the
information below.
Timeframe to process your request
Your request was received by the Australian Electoral Commission (the AEC)
on 25 August 2023, and the 30 day statutory timeframe for processing your
request commenced from the day after that date. You should expect to
receive a decision from us by 25 September 2023. The period of 30 days
may be extended if we need to consult third parties or for other reasons.
We will advise you if this timeframe is extended.
Your address
The FOI Act requires that you provide us with an address to which we can
send notices. You have advised that your electronic address is
[3][FOI #10612 email]. We will send all
notices and correspondence to this address.
Please advise us as soon as possible if you wish for notices and
correspondence to be sent to a different address. If you do not advise us
of changes to your address, notices and correspondence will continue to be
sent to the address specified above.
Disclosure log
Documents released under the FOI Act may be published in a disclosure log
on the AEC's website. Section 11C of the FOI Act requires this
publication, however it is subject to certain exceptions, including where
publication of personal, business, professional or commercial information
would be unreasonable.
Further assistance
If you have any questions please email [4][email address], or contact our
enquiries line on 13 23 26.
Kind regards,
Stephanie
Australian Electoral Commission
Dear Stephanie,
Thank you for your detailed response to my FOI request and for clarifying the AEC's legislative role regarding referendum ballot papers. I also appreciate the link to the published legal advice on the formality of ticks or crosses on a federal referendum ballot paper.
However, there remain documents within the scope of my request that have not been administratively addressed, such as internal and external communications, drafts, memos and other materials.
I understand the AEC's workload during this busy time and would like to extend a gesture of goodwill. I hereby offer a s15AA extension of 30 days, which would extend the statutory timeframe for processing my FOI request to October 25, 2023. I hope this extension would help alleviate some of the burden on the AEC's resources.
Thank you for your diligence in this matter.
Yours sincerely,
CR
Good afternoon,
Thank you for your prompt response.
I note that you are still seeking documents such as internal and external communications, drafts, memos and other materials.
Could you please confirm that you are still seeking these documents for all of the following categories:
1. All documents pertaining to the design of the 2023 referendum ballot paper.
2. All documents concerning the "YES/NO" voting method for the 2023 referendum ballot paper.
3. All documents pertaining to the application of savings provisions concerning 'ticks' and 'crosses' on the ballot papers.
Kind regards,
Stephanie
Australian Electoral Commission
Good afternoon,
Please note – there seems to be an issue getting our attachments through
our email filter, please let us know if you have received the below email
– otherwise we will get these to you as soon as possible.
In the meantime, I have extracted the text of your decision letter below.
FOI Request: Freedom of Information Request No. LEX 4640
Your FOI Request
On 25 August you wrote to the Australian Electoral Commission (AEC)
seeking access under the Freedom of Information Act 1982 (the FOI Act) to:
1. All documents pertaining to the design of the 2023 referendum ballot
paper.
This includes, but is not limited to, internal and external
communications, drafts, memos, guidelines, and any other pertinent
materials. I am particularly interested in any communication between the
AEC and external bodies concerning the design, layout, or content of the
ballot paper.
2. All documents, reports, evaluations, or assessments carried out by the
AEC or external parties concerning the "YES/NO" voting method for the 2023
referendum ballot paper. This specifically includes materials exploring
the use of "YES/NO" as opposed to traditional methods such as marking,
ticking, or crossing boxes.
3. All documents pertaining to the application of savings provisions
concerning 'ticks' and 'crosses' on the ballot papers. This extends to
legal advice, guidance, memos, and any other relevant material.
On 31 August 2023, you consented to an extension for your request until 25
October 2023.
The AEC has also received three other FOI requests seeking similar
documents to those outlined in item 3 of your request:
+------------------------------------------------------------------------+
|LEX4641|I am requesting access to copies of documents, such as advice, |
| |briefing notes, or research, relating to the claim that on a |
| |referendum ballot paper, a tick will be accepted as a formal |
| |vote for yes, but a cross will not be accepted as a formal vote.|
| |This request relates to documents created, published, sent, or |
| |received at the AEC between 1 May 2022 and 25 August 2023. |
|-------+----------------------------------------------------------------|
|LEX4643|Copies of internal AEC documents including but not limited to |
| |emails, briefings and memorandums (but excluding complaints and |
| |general correspondence from electors), which reference "ticks" |
| |or "crosses" in relation to the upcoming Voice referendum. |
|-------+----------------------------------------------------------------|
|LEX4645|I am requesting all legal advice regarding savings provisions |
| |that would indicate a tick indicates a 'Yes' vote, but where a |
| |cross would not indicate a 'No' vote at a referendum; and where |
| |'Y' and 'N' may not show clear intention under the saving |
| |previsions. |
+------------------------------------------------------------------------+
Noting the similarity of these requests, and to facilitate the prompt
processing of these requests, we are providing all four applicants with
all documents that fall within the scope of these four requests.
We will process the remainder of your request (items 1 and 2) by the
extended timeframe of 25 October 2023.
Identification of Documents
I identified the documents that fell within the scope of these FOI
requests (the ‘Relevant Documents’) by contacting the relevant areas of
the AEC in order for them to conduct searches for relevant documents.
The schedule of documents in Attachment A provides a description of each
of the Relevant Documents and the access decision for each of the Relevant
Documents.
Decision
With regard to the Relevant Documents identified in Attachment A, I have
decided:
• Access in full: document numbers 2, 7a, 39, 56a, 57, 61, 81.
• Edited Copies: document numbers 1, 3, 4, 5, 6, 6a, 7, 8, 9, 10, 11, 12,
13, 14, 15, 16, 17, 18, 18a, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30,
31, 32, 33, 34, 35, 36, 37, 38, 41, 42, 43, 44, 47, 48, 49, 50, 51, 52,
53, 54, 55, 56, 58, 60, 62, 63, 63a, 67b, 67c, 71, 72, 80
• Refuse access: documents numbers 19, 40, 45a, 45b, 46, 59, 64, 65, 66,
67, 67a, 68, 69, 70, 70a, 70b, 70c, 70d, 70f, 70g, 74, 75, 76, 77, 78, 79.
The relevant documents are provided as a separate attachment to this
decision.
More information, including my reasons for my decision, is set out in
Attachment B.
Review Rights
You are entitled to seek review of this decision. Attachment C sets out
your rights to apply for review if you are dissatisfied with my decision.
Yours sincerely
Andrew Johnson
Chief Legal Officer
Australian Electoral Commission
From: FOI <[email address]>
Sent: Monday, September 25, 2023 6:39 PM
To: [FOI #10612 email]
Subject: LEX4640 - FOI Decision
Good afternoon,
Please see attached decision on access for your FOI request.
Due to the size and number of these documents, these will be uploaded
directly to the AEC disclosure log and you will be able to access these
documents online at [1]Freedom of Information (FOI) Disclosure Log -
Australian Electoral Commission (aec.gov.au). We will provide you a direct
link as soon as these documents are uploaded.
Kind regards,
Stephanie
Australian Electoral Commission
Dear Andrew,
I regret to inform you that the attachments you mentioned in your previous email seem to have been caught in your email filter and were not received on my end. I kindly request you to resend the attachments or alternatively, upload them to the AEC website and provide me with a direct link for access.
In order to ensure clarity and accuracy, I would appreciate your confirmation regarding the following points. It is my understanding that due to the similarity between item 3 of my FOI request and three other FOI requests, all four requests were consolidated and treated as a single request. The decision letter and relevant documents I received pertain solely to this consolidated part of my request. Furthermore, I understand that the processing of item 1 and item 2 of my FOI request will be completed by the extended timeframe of 25 October 2023. I kindly request your confirmation on these matters.
Thank you for your prompt attention to this matter.
Yours sincerely,
CR
Good morning,
I have attached the attachments to the decision letter.
I confirm that yes, this decision pertains only to item 3 of your request, that was consolidated with 3 other requests.
The remainder of your request (items 1 &2) will be processed by the extended date of 25 October.
Kind regards,
Stephanie
Australian Electoral Commission
Dear Stephanie,
s 54(B) of the FOI Act states that an applicant must make an application for internal review within 30 days of receiving a decision. I seek clarification on whether the 30-day timeframe applies to the decision on item 3 alone, requiring an application by 26 October 2023, or if it commences once a decision is received for the full request, which is due by 25 October 2023.
I apologise for the multiple inquiries regarding this request. Thank you for your time and helping me understand the provisions and procedures of the FOI Act.
Yours sincerely,
CR
Good afternoon,
Thank you for your email.
We acknowledge that this is not the ordinary approach, however we did not want you to be disadvantaged by delaying the entirety of your request while other applicants with largely similar requests were provided with their documents.
As such we will accept a request for internal review up until 30 days after you have received your final decision letter for the full request.
Kind regards,
Stephanie
Australian Electoral Commission
Good afternoon,
Please see attached FOI decision and documents.
Kind regards,
Stephanie
Australian Electoral Commission
Dear Stephanie,
Did any of the other applicants (LEX4641, LEX4643, LEX4645) request an internal or IC Review concerning the access refusal decision for item 3 of my FOI request?
Yours sincerely,
CR
Good afternoon,
I can confirm that the review period for these applicants has expired and
the AEC has not received any review requests.
You may be interested in the following information that relates to your
request:
1. The full Federal Court handed down a judgment on 9 October 2023. The
reasons for this judgment were published on 12 October 2023, and can be
found here -
[1]http://www.austlii.edu.au/cgi-bin/viewdo...
2. Additional relevant documents have since been released under FOI here
(LEX4969)- [2]https://www.aec.gov.au/information-acces...
Kind regards,
Stephanie
Australian Electoral Commission
Dear Australian Electoral Commission,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of the Australian Electoral Commission's handling of my FOI request 'Documents pertaining to the 2023 referendum ballot papers' (LEX4640).
I am seeking review of the AEC’s decision to refuse access to certain documents on following grounds:
Items 1 and 2 of the request:
• Document 1b - s 47E(d)
• Document 1c - s 47E(d)
• Document 2 - s 47E(d)
• Document 3 - s 42 and s 22
• Document 3a - s 47E(d)
• Document 4 - s 22
• Document 4a - s 47E(d)
• Document 4b - s 47E(d)
• Document 5a - s 47E(d)
• Document 6 - s 22
• Document 6a - s 47E(d)
• Document 6b - s 47E(d)
• Document 6c - s 47E(d)
• Document 6d - s 47E(d)
• Document 7a - s 47E(d)
• Document 7b - s 47E(d)
• Document 8 - s 42
• Document 9 - s 42
• Document 10 - s 42
• Document 11 - s 42
• Document 12 - s 42
• Document 13 - s 42
• Document 14 - s 42
• Document 15 - s 42
• Document 16 - s 42
• Document 20 - s 42
Item 3 of the request:
• Document 19 - s 42
• Document 38 - s 42(1) and s 47C
• Document 40 - s 47E(d)
• Document 44 - s 47E(d)
• Document 45a - s 47E(d)
• Document 45b - s 47E(d)
• Document 46 - s 47E(d)
• Document 56 - s 22 and s 47E(d)
• Document 58 - s 47C, contains a s 41(1) exemption - is this a typographical error?
• Document 59 - s 47E(d)
• Document 62 - s 42
• Document 63 - s 42 and s 22
• Document 63a - s 42
• Document 64 - s 42
• Document 65 - s 42
• Document 66 - s 42 and s 47E(d)
• Document 67 - s 47E(d) and s 42
• Document 67a - s 47E(d)
• Document 67b - s 42
• Document 67c - s 42
• Document 68 - s 42 and s 22
• Document 69 - s 42 and s 22
• Document 70 - s 42
• Document 70a - s 42 and s 22
• Document 70b - s 42 and s 22
• Document 70c - s 42
• Document 70d - s 42 and s 22
• Document 70f - s 42 and s22
• Document 70g - s 42 and s22
• Document 71 - s 47E(d)
• Document 72 - s 22, s 47E(d), s 47c, it appears an attachment is missing from the email thread.
• Document 74 - s 42
• Document 75 - s 22 and s 42
• Document 76 - s 47E(d)
• Document 77 - s 47E(d)
• Document 78 - s 47E(d) and s 42
• Document 79 - s 47E(d)
• Document 80 - s 47E(d)
While I am seeking review of all the above exemptions, I wish to submit the following comments regarding some exemptions:
• Any legal professional privilege that existed in the legal advice exempt under section 42 has been waived by the AEC through its public statements about the advice over many years.
• I do not consider that the conditionally exempt material under sections 47C and 47E(d) would be contrary to the public interest for the following reasons:
1. The factors against disclosure set out in the AEC’s decision letter cannot be considered, as:
• Disclosure would not divert resources away from the AEC or impact the effective and efficient functioning of the government in relation to the referendum as the period has now passed.
• The assertion that disclosure could divert resources is speculative and does not establish the 'substantial adverse effect' threshold.
• Vague claims that disclosure could prejudice operations are not sufficient – likely effect must be specifically established.
• Scrutiny of past processes is unlikely to prejudice future operations and may even assist the AEC to improve.
• The decision maker has not properly balanced the public interest in transparency and scrutiny against a general assertion that disclosure could inhibit candour. Significant time has now passed, and scrutiny of past decisions will not deter future candid advice.
• The AEC has a statutory duty of accountability which outweighs internal deliberation concerns once a process is complete.
• Particular documents do not appear to genuinely reflect candid internal deliberations but relate to factual briefings or administrative matters. The exemption should not apply broadly.
2. Significant public interest in the referendum means the factors favouring disclosure under the public interest test clearly outweigh any internal deliberation concerns for these documents.
3. Informing public debate. There is significant public interest and debate regarding how the referendum was planned and conducted. Disclosure of the documents would further inform this important debate by shedding light on the AEC's processes and decision making.
4. Promoting transparency and accountability of government decision making. Increased scrutiny of these operations promotes good governance and the objectives of the FOI Act.
5. The AEC has specialist expertise but also a statutory duty of accountability that weighs heavily in the public interest test for these documents relating to the referendum.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/d...
I look forward to your consideration of this request for internal review.
Yours faithfully,
CR
Dear CR,
Following on from my previous email, please find attached Document 40.
Kind regards,
Natalie
FOI Team
Australian Electoral Commission
T: 13 23 26
Dear CR,
Please find attached decision letter of even date, attachments and relevant documents for release regarding your request for an internal review of the below FOI request.
Please note that Document 40 is a larger file and I will send it through separately in a subsequent email.
If you have any issues opening the documents or queries please do not hesitate to reach out.
Kind regards,
Natalie
FOI Team
Australian Electoral Commission
T: 13 23 26
Dear CR,
Please find attached decision letter of even date, attachments and relevant documents for release regarding your request for an internal review of the below FOI request.
Please note that Document 40 is a larger file and I will send it through separately in a subsequent email.
If you have any issues opening the documents or queries please do not hesitate to reach out.
Kind regards,
Natalie
FOI Team
Australian Electoral Commission
T: 13 23 26
Dear CR,
Following on from my previous email, please find attached Document 40.
Kind regards,
Natalie
FOI Team
Australian Electoral Commission
T: 13 23 26
Dear CR,
Please find attached decision letter of even date, attachments and relevant documents for release regarding your request for an internal review of the below FOI request.
Please note that Document 40 is a larger file and I will send it through separately in a subsequent email.
If you have any issues opening the documents or queries please do not hesitate to reach out.
Kind regards,
Natalie
FOI Team
Australian Electoral Commission
T: 13 23 26
Dear CR,
Please find attached decision letter of even date, attachments and relevant documents for release regarding your request for an internal review of the below FOI request.
Please note that Document 40 is a larger file and I will send it through separately in a subsequent email.
If you have any issues opening the documents or queries please do not hesitate to reach out.
Kind regards,
Natalie
FOI Team
Australian Electoral Commission
T: 13 23 26
Dear CR,
Following on from my previous email, please find attached Document 40.
Kind regards,
Natalie
FOI Team
Australian Electoral Commission
T: 13 23 26
Dear CR,
Please find attached decision letter of even date, attachments and relevant documents for release regarding your request for an internal review of the below FOI request.
Please note that Document 40 is a larger file and I will send it through separately in a subsequent email.
If you have any issues opening the documents or queries please do not hesitate to reach out.
Kind regards,
Natalie
FOI Team
Australian Electoral Commission
T: 13 23 26
Dear CR,
Please find attached decision letter of even date, attachments and relevant documents for release regarding your request for an internal review of the below FOI request.
Please note that Document 40 is a larger file and I will send it through separately in a subsequent email.
If you have any issues opening the documents or queries please do not hesitate to reach out.
Kind regards,
Natalie
FOI Team
Australian Electoral Commission
T: 13 23 26
Dear CR,
Following on from my previous email, please find attached Document 40.
Kind regards,
Natalie
FOI Team
Australian Electoral Commission
T: 13 23 26
Dear CR,
Please find attached decision letter of even date, attachments and relevant documents for release regarding your request for an internal review of the below FOI request.
Please note that Document 40 is a larger file and I will send it through separately in a subsequent email.
If you have any issues opening the documents or queries please do not hesitate to reach out.
Kind regards,
Natalie
FOI Team
Australian Electoral Commission
T: 13 23 26
Dear CR,
Please find attached decision letter of even date, attachments and relevant documents for release regarding your request for an internal review of the below FOI request.
Please note that Document 40 is a larger file and I will send it through separately in a subsequent email.
If you have any issues opening the documents or queries please do not hesitate to reach out.
Kind regards,
Natalie
FOI Team
Australian Electoral Commission
T: 13 23 26