Thank you for contacting us.

This is an automatic response from the Australian Electoral Commission to confirm we have received your email.

For more information on enrolling to vote, federal elections or the AEC, visit www.aec.gov.au.

Please do not respond to this email.

Dear Mr Easton

I am writing to in relation to your email of 24 January 2018 11:44 PM in
which you make a purported request under the [1]Freedom of Information Act
1982 for access to “all the reasons provided as a valid and sufficient
reason for not voting in the 2016 federal election.”

Your purported FOI Request has been referred to me for reply on behalf of
the Australian Electoral Commission (‘AEC’).

My purpose in writing is to explain why your purported request does not
meet the requirements of Part III of the FOI Act for the making of a valid
request under that part (an ‘FOI Request’) and to give guidance about how
to make a valid FOI Request.

The terms of your purported request does not meet the requirements for a
valid FOI request under section 15(2) of the FOI Act.

Section 15(2) of the FOI Act provides:

15  Requests for access

Requirements for request

(2)      The request must:

(a)      be in writing; and

(aa)    state that the request is an application for the purposes of this
Act; and

(b)      provide such information concerning the document as is reasonably
necessary to enable a responsible officer of the agency, or the Minister,
to identify it; and

(c)      give details of how notices under this Act may be sent to the
applicant (for example, by providing an electronic address to which
notices may be sent by electronic communication).

You need to give further thought to the specification of what documents in
the possession of the AEC you want for the purposes of paragraph 15(2)(b)
of the FOI Act. The FOI Act does not require the AEC to create a new
document to satisfy an FOI request.

To assist you in this regard, I direct you to the definition of ‘document’
in subsection 4(1) of the FOI Act, which provides:

document includes:

(a)      any of, or any part of any of, the following things:

(i)       any paper or other material on which there is writing;

(ii)      a map, plan, drawing or photograph;

(iii)     any paper or other material on which there are marks, figures,
symbols or perforations having a meaning for persons qualified to
interpret them;

(iv)     any article or material from which sounds, images or writings are
capable of being reproduced with or without the aid of any other article
or device;

(v)      any article on which information has been stored or recorded,
either mechanically or electronically;

(vi)     any other record of information; or

(b)     any copy, reproduction or duplicate of such a thing; or

(c)      any part of such a copy, reproduction or duplicate;

but does not include:

(d)     material maintained for reference purposes that is otherwise
publicly available; or

(e)      Cabinet notebooks.

I also note that the AEC publishes an Electoral Backgrounder that contains
information relating to compulsory voting and the offence contained in
section 245 of the Commonwealth Electoral Act 1918 , for failing to vote
in a Federal election. This publication can be accessed at
[2]http://www.aec.gov.au/About_AEC/Publicat....

As is clearly set out in the Electoral Backgrounder, the AEC is bound by
the various decisions of Superior Courts as to what is and what is not a
“valid and sufficient reason” for failing to vote in an election. 

One of the leading cases is the decision of the High Court of Australia in
Judd v McKeon [1926] HCA 33, where Justice Isaacs held:

“In my opinion, a "valid and sufficient reason" means some reason which is
not excluded by law, and is in the circumstances a reasonable excuse for
not voting. If it be, as in this case, an open challenge to the very
essence of the enactment, it is, of course, excluded by law, and not
valid. So also, if there be any express provision of any law with which
the alleged reason is in conflict. Again, if a mandatory or prohibitive
regulation be contravened, the same result follows. But the reason may be
compulsive obedience to law, which makes voting practically impossible. 
Physical obstruction, whether of sickness or outside prevention, or of
natural events, or accident of any kind, would certainly be recognised by
law in such a case.  One might also imagine cases where an intending voter
on his way to the poll was diverted to save life, or prevent crime, or to
assist at some great disaster, as a fire, in all of which cases, in my
opinion, the law would recognise the competitive claims of public duty. 
These observations are not, of course, suggested as exhaustive, but as
illustrative, in order to dispel the idea that personal physical inability
to record a vote is the only class of reasons to be regarded as "valid." 
The sufficiency of the reason in any given instance is a pure question of
fact, dependent on the circumstances of the occasion”.

The highlighted part of the above quote indicates that the sufficiency of
the reasons given for failing to vote in a Federal election is a “pure
question of fact, dependent on the circumstances of the occasion”.

The Courts have clearly stated that there are a range of circumstances
which are not a “valid and sufficient reason” for failing to vote at a
Federal election and this includes any circumstances that are an “open
challenge to the very essence” of the compulsory voting requirement that
is placed upon all eligible Australians.    

Please do not hesitate to contact me (my contact details are below) if you
require further assistance to make a valid FOI Request. When submitting
the FOI Request, please use the [3][AEC request email] mailbox so that it is
properly receipted by the AEC.

Kind regards

Emma

 

Emma Rostron | A/g Senior Lawyer

Legal Services Section | Legal & Procurement Branch

Australian Electoral Commission

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