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Dear Mr Bagshaw

 

I refer to I refer to your email of 1 December 2015  making a request for
the release of information from the Commonwealth electoral Roll relating
to some un-named person who you believe changed their name in 1999. 

 

You made your request to the Australian Electoral Commission (AEC) under
the Commonwealth Freedom of Information Act 1982 (FOI Act).

 

Non-compliance with subsection 15 of the FOI Act

 

I note that your email contains no information about the person who you
state disappeared from the Commonwealth electoral Roll in 1999 and who you
believe was married and changed her name.

 

Section 15(2)(b) states that for a valid FOI request to be made to a
Commonwealth agency, the request must “provide such information concerning
the document as is reasonably necessary to enable a responsible officer of
the agency, or the Minister, to identify it”.  As your email does not
contain any such information relating to the person who you state you are
seeking information about, the AEC is of the view that your email is
currently not a valid request.

 

Third party access to Roll information

 

You should also be aware that under the FOI Act and the Commonwealth
Electoral Act 1918, the AEC is unable to lawfully disclose information to
third parties that has been derived from a claim for enrolment.

 

Section 47A of the FOI Act provides as follows:

 

47A  Electoral rolls and related documents

             (1)  In this section:

Electoral Act means the Commonwealth Electoral Act 1918.

electoral roll means:

                     (a)  a Roll of the electors of:

                              (i)  a State or Territory; or

                             (ii)  a Division (within the meaning of the
Electoral Act); or

                            (iii)  a Subdivision (within the meaning of
the Electoral Act);

                            prepared under the Electoral Act; or

                     (b)  any part of a Roll referred to in paragraph (a);
or

                     (c)  an electoral roll prepared under the Legislative
Assembly Act 1979 of Norfolk Island; or

                     (d)  any part of an electoral roll referred to in
paragraph (c).

             (2)  Subject to this section, a document is an exempt
document if it is:

                     (a)  an electoral roll; or

                     (b)  a print, or a copy of a print, of an electoral
roll; or

                     (c)  a microfiche of an electoral roll; or

                     (d)  a copy on tape or disk of an electoral roll; or

                     (e)  a document that:

                              (i)  sets out particulars of only one
elector; and

                             (ii)  was used to prepare an electoral roll;
or

                      (f)  a document that:

                              (i)  is a copy of a document referred to in
paragraph (e); or

                             (ii)  contains only copies of documents
referred to in paragraph (e); or

                     (g)  a document (including a habitation index within
the meaning of the Electoral Act) that:

                              (i)  sets out particulars of electors; and

                             (ii)  was derived from an electoral roll.

             (3)  The part of an electoral roll that sets out the
particulars of an elector is not an exempt document in relation to the
elector.

             (4)  Any print, copy of a print, microfiche, tape or disk
that sets out or reproduces only the particulars entered on an electoral
roll in respect of an elector is not an exempt document in relation to the
elector.

             (5)  A document that sets out only the particulars of one
elector and:

                     (a)  is a copy of a document referred to in
paragraph (2)(e); or

                     (b)  is a copy, with deletions, of a document
referred to in paragraph (2)(e), (f) or (g);

is not an exempt document in relation to the elector.”

 

It is apparent that you are seeking access to information that “sets out
the particulars of only one elector” (the person who you state was married
in 1999) that has been “derived from an electoral roll”.  As such any
valid FOI request would fall within paragraph (e) of subsection 47A(2) and
therefore involves an exempt document which is unable to be accessed under
the FOI Act.  The exemption contained in section 47A of the FOI Act is not
subject to the additional “public interest” test contained in Division 3
of Part IV of the Act.  This means that the purpose for which you state
you are seeking access to this document is not relevant to the application
of the exemption contained in section 47A of the FOI Act. 

 

Subsection 47A(5) of the FOI Act states that a document that sets out the
particulars of only one elector “is not an exempt document in relation to
the elector”.  This means that if the AEC received a request directly from
the person you are seeking that specifically referred to accessing
documents that only contain that person’s enrolment details, this would
not be exempt under section 47A of the FOI Act.   

 

I note that the exemption from being able to access documents relating to
the enrolment of Australians citizens on the Commonwealth electoral Roll
is also supported by the existence of section 390 of the Commonwealth
Electoral Act 1918 (where enrolment documents cannot be accessed by the
Courts) and section 390A (where enrolment records are exempt from police
search warrants).  This is a reflection of sensitivity that the Parliament
regards these records.  Further, Part VI of the Commonwealth Electoral Act
1918 contains a comprehensive regime of provisions that regulate the
persons and organisations to which the AEC is lawfully able to disclose
the Commonwealth electoral roll, the information that is able to be
included in each version of the electoral roll that can be disclosed and
the permitted uses that can lawfully be made of that information.  The
relevant provisions are contained in sections 90A, 90B, 91A and 91B and
were inserted by the Electoral and Referendum Amendment (Access to the
Electoral Roll and Other Measures) Act 2004 (Amendment Act).  The
Amendment Act also introduced a range of criminal offences that apply to
the use and disclosure of the protected information from the Commonwealth
electoral Roll where this was not for a permitted purpose.  The offence in
subsection 91A(1) of the Commonwealth Electoral Act 1918 for the
unauthorised use of Roll information carries a penalty of 100 penalty
units (i.e. $18,000) while the offence in subsection 91B(2) of the
Commonwealth Electoral Act 1918 for the unauthorised disclosure of Roll
information carries a penalty of 1,000 penalty units (i.e. $180,000). 
This level of penalties indicates the seriousness that the Commonwealth
Parliament regarded such breaches of the Commonwealth Electoral Act 1918
and the sensitivities about the “personal information” held by the AEC as
part of the database behind the Commonwealth electoral Roll.

 

Way forward

 

The AEC is aware that the Victorian State Library maintains older versions
of the Commonwealth electoral Roll up until 2006 and you may be able to
obtain some information from those sources that may assist in your
inquiry.  In addition, the Victorian Electoral Commission maintains its
own electoral Roll.  The AEC is not the Registrar of Births Deaths and
Marriages and suggests that that agency would be more appropriate to deal
with your enquiry.  

 

If you have any queries in relation to this email, please feel free to
contact me.

 

Yours sincerely

 

 

Paul Pirani | Chief Legal Officer

Legal & Procurement Branch Executive | Legal & Procurement Branch

Australian Electoral Commission

T: (02) 6271 4474 | M: 0401 144 531 | F: (02) 6293 7657

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