Administrative Decisions (Judicial Review) Act 1977

Commonwealth Electoral Act 1918: S.245

Freedom of Information Act 1982: Ss.3, 37, 40

Re Mickelberg and Australian Federal Police (1984) 6 ALN N176

Solicitor for the Respondent: Australian Government Solicitor

The Tribunal decides that the decision under review be affirmed.

K.L. BEDDOE The applicant seeks review of a decision of the acting Electoral Commissioner to refuse him access under the Freedom of Information Act 1982 ("the Act") to certain documents regarding the Commission's policy on valid and sufficient reasons for a person's failure to vote in a Federal election.

2. By an application dated 18 June 1993 the applicant sought access to all documents containing policy and guidelines (whether formal or informal) used by the Australian Electoral Commission to determine whether a reason given for not voting is a "sufficient reason". The respondent granted access to a number of documents held by the Commission including a document which is entitled "Divisional Office Procedures (Elections) Manual" and which is referred throughout the material before the Tribunal as the D.O.P.E. Manual. In these reasons for decision I will refer to that document as "the manual". The dispute between the parties involves two pages, being pages 11 and 12 of the manual. Those pages 11 and 12 have not been produced before the Tribunal, although Mr Hack of counsel offered to do so if the Tribunal required them.

3. Section 3 of the Act sets out the object of the Act as follows:

"3. (1) The object of this Act is to extend as far as possible the right

of the Australian community to access to information in the possession

of the Government of the Commonwealth by:

(a) making available to the public information about the operations of

departments and public authorities and, in particular, ensuring that

rules and practices affecting members of the public in their dealings

with departments and public authorities are readily available to persons

affected by those rules and practices; and

(b) creating a general right of access to information in documentary

form in the possession of Ministers, departments and public authorities,

limited only by exceptions and exemptions necessary for the protection

of essential public interests and the private and business affairs of

persons in respect of whom information is collected and held by

departments and public authorities; and

(c) creating a right to bring about the amendment of records containing

personal information that is incomplete, incorrect, out of date or

misleading.

(2) It is the intention of the Parliament that the provisions of this

Act shall be interpreted so as to further the object set out in

(1) and that any discretions conferred by this Act shall be

exercised as far as possible so as to facilitate and promote, promptly

and at the lowest reasonable cost, the disclosure of information."

4. Section 18 of the Act provides that where a request is made in accordance with the requirements of sub-section 15(2) of the Act by a person to an agency or Minister for access to a document of the agency or an official document of the Minister and any charge that, under the regulations, is required to be paid before access is granted has been so paid, the person shall be given access to the document in accordance with the Act. The section is, however, subject to the provisions of the Act and sub-section 2 of section 18 makes it clear that an agency or Minister is not required by the Act to give access to a document at a time when the document is an exempt document.

5. In this case the respondent Commissioner relies upon two provisions of the Act to justify the claim for exemption of the two pages from the manual. The first is sub-section 37(2) which provides that a document is an exempt document if its disclosure under the Act would or could reasonably be expected to disclose lawful methods or procedures for preventing, detecting, investigating or dealing with matters arising out of features or evasions of the law, the disclosure of which would or would reasonably be likely to prejudice the effectiveness of those methods or procedures. To the extent that there are other provisions in sub-section 37(2), the respondent does not rely upon them.

6. The respondent also relies upon section 40 and, in particular, paragraph 40(1)(d) which provides, subject to sub-section (2) of section 40 that a document is an exempt document if its disclosure under the Act would or could reasonably be expected to have a substantial adverse effect on the proper or efficient conduct of the operations of the agency. Sub-section (2) provides that the section does not apply to a document in respect of matter in the document, the disclosure of which under this Act would, on balance, be in the public interest.

7. At the hearing of this matter Mr Murphy appeared on his own behalf, and Mr P Hack of counsel, instructed by the Australian Government Solicitor, appeared for the respondent Commissioner. The documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence as evidence of the existence of the documents but not as to the facts asserted in the documents.

8. The evidence of Ross McPherson Mackay, who is the Director of Operations for the Australian Electoral Commission in Queensland, established that release of the pages in question may be expected to disclose methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of breaches or evasions of the law, the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures. That evidence also established that the pages for which exemption is claimed list specified circumstances and examples of reasons for failure to vote which would be regarded as valid and sufficient reasons. It was further established that release of the subject documents would reasonably be expected to prejudice the effectiveness of methods and procedures used by the Electoral Commission when investigating and dealing with possible breaches of section 245 of the Commonwealth Electoral Act 1918 ("the Electoral Act"). Section 245 is the regime for what is commonly referred to as compulsory voting. Mr Mackay's evidence also established that disclosure of pages 11 and 12 of the manual could reasonably be expected to have a substantial adverse affect on the proper and efficient conduct of the operations of the Electoral Commission. This refers in particular to the enforcement of compulsory voting as required by section 245 of the Electoral Act. Mr Mackay's evidence also established that pages 11 and 12 of the manual disclosed the procedures in relation to dealing with defaulters under section 245 and to disclose those procedures would be to prejudice their effectiveness and the efficiency of the operations of the Commission. Mr Mackay further claims in his affidavit of evidence that, because compulsory voting is one of the fundamental elements of Australia's electoral system and, since disclosure of the exempt documents could substantially adversely affect the Commission's enforcement of the law, then, on balance, disclosure would not be in the public interest. In his oral evidence Mr Mackay said, in particular, that granting access to documents was likely to result in persons giving false answers to the questionnaires sent to them by Divisional Returning Officers when they have failed to vote in a Federal election.

9. Apparently the manual is used throughout Australia by Divisional Returning Officers in relation to the administration of the Electoral Act. Mr Mackay estimated that there are approximately one thousand employees of the Electoral Commission throughout Australia but not all of those employees would have access to the manual - only operations area staff employed both in the central offices and also in the divisional offices throughout Australia would have access to the manual. As to how many employees that involves was not made clear to the Tribunal.

10. The apprehension evident in Mr Mackay's evidence was confirmed by the evidence of the applicant when he said that he was likely to publish the material if it became available to him by a grant of access under the Act.

11. The applicant called the Divisional Returning Officer for the Division of Forde, one Graham Francis Smith, to give evidence. Mr Smith gave general evidence about how he dealt with the approximately four thousand non voters in the electorate of Forde and how he determined the matters in terms of section 245. In relation to the last Federal election in March 1993 he said that there were still some matters outstanding, but most matters had been resolved within four months of the election. He said that in the course of considering applications by defaulting voters he consulted the guidelines and referred to the manual in his day to day work. He agreed that the guidelines in the manual set out the policy of the Commission and that it is his practice to follow that policy.

12. Relying on section 61 of the Act the applicant drew attention to the onus on the respondent to establish that all the elements of paragraph 37(2)(b) of the Act had been satisfied before the claim for exemption could succeed. He submitted that the elements to be satisfied, are whether there was a method or procedure which was lawful for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law where disclosure would or could reasonably likely prejudice the effectiveness of those methods or procedures. The applicant submitted that the documents themselves did not constitute a method or procedure and that on those grounds alone, the documents did not come within section 37. He also submitted that the documents were in a sense unlawful or at least, if they did constitute a procedure, then that procedure was unlawful because the procedure required the Divisional Returning Officer to keep the documents in question confidential and not disclose the basis for the decision which relied upon the contents of the documents. In other words, because the interpretations which are set out in pages 11 and 12 of the manual are kept secret, the Divisional Returning Officer was required to exercise his powers of decision-making in a way which was inconsistent with the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). The applicant relied to a considerable extent upon the Judicial Review Act but I am unable to be satisfied that the Judicial Review Act has any relevance to these proceedings and, in particular, has any relevance to the determination of whether or not documents were exempt within the terms of the Freedom of Information Act 1982. I do understand the applicant's argument, that because a decision by a Divisional Returning Officer could be claimed to be reviewable within the terms of the Judicial Review Act and therefore section 13 of the Judicial Review Act would apply to require written reasons to be given when sought, that somehow the confidentiality of the pages of the manual could be said to be contrary to the provisions of that Act. I think the correct situation is as put by counsel for the respondent and that is that the Judicial Review Act in really not relevant to these processes at all because if the defaulter at the elections who failed to vote does not accept the administrative procedure laid down in the Electoral Act, it is then a matter for the Courts to determine whether or not that person is subject to a sanction provided by the Act.

13. As an alternative argument the applicant submitted that if the documents do describe a method or procedure and that method or procedure is lawful, it is further submitted that the procedure is not concerned with preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law. It is only necessary to state that proposition to realise that it runs directly contrary to the obligations of the Divisional Returning Officer under section 245 of the Electoral Act. Clearly the Divisional Returning Officer is required by that section to determine whether a defaulting elector who failed to vote at an election had a valid and sufficient reason for not voting. To satisfy himself or herself in relation to the requirements of section 245 the Divisional Returning Officer would be required to investigate each claim of default by an elector. As to how the Divisional Returning Officer proceeds to investigate that default by the elector is set out in the manual. To say that the Divisional Returning Officer is not investigating matters arising out of breaches or evasions of the law is, in my view, to deny the realities of the situation. Clearly that is what the Divisional Returning Officers do.

14. It is relevant to look at section 245 of the Electoral Act in some detail. Sub-section (1) provides that it is the duty of every elector to vote at each election. Sub-section (2) provides that the Electoral Commissioner must, after polling day at each election, prepare for each division a list of names and addresses of the electors who appear to have failed to vote at the election. Sub-section (3) provides for the Divisional Returning Officer to send a notice by post to each alleged defaulter within three months of the polling day. That notice is described as a Penalty Notice. However, such a notice is not required if the Divisional Returning Officer is satisfied that the elector is dead or was absent from Australia on polling day, or was ineligible to vote at the election, or had a valid and sufficient reason for failing to vote. The details to be included in the Penalty Notice are set out in sub-section 245(5). The notice includes a procedure for dealing with a default or apparent default by providing that the elector can:

(1) notify the Divisional Returning Officer of the particulars of the

fact that the elector did in fact vote in the election; or

(2) where the elector failed to vote, provide the Divisional Returning

Officer with a valid and sufficient reason for the failure;or

(3) pay to the Divisional Returning Officer a penalty of $20.

15. Where the Divisional Returning Officer is satisfied that the apparently defaulting voter did in fact vote at the election or where the Divisional Returning Officer is satisfied that the reason given for failing to vote is a valid and sufficient reason, or where the elector who has defaulted responds by paying the penalty of $20, then the Act provides that the provisions of sub-section 245(15), dealing with prosecution of defaulting electors, do not apply.

16. Where, however, the Divisional Returning Officer is not satisfied with the response as to the reason for default or that the elector has in fact voted in the poll, then the Divisional Returning Officer must send by post to the elector a notice in the approved form notifying the elector that the Divisional Returning Officer is not so satisfied and that if the elector does not wish to have the apparent failure to vote dealt with by a Court, then he or she may, within the prescribed time, pay to the Divisional Returning Officer a penalty of $20. Once again, if the $20 penalty is paid to the Divisional Returning Officer, then proceedings for failure to vote at the election are prohibited.

17. It is clear that the requirements of section 245 of the Act are dealing with the position of alleged defaulting voters. It is also clear that the section requires the Divisional Returning Officer to investigate such defaults. As a matter of practice, no doubt, many cases can be resolved very quickly by the explanation given to the Penalty Notice sent to the apparently defaulting voter. It would also be apparent, I would think, that some cases will require more detailed investigation by the Divisional Returning Officer to ascertain the facts of the case. It is in this regard that the relevant pages of the manual come into play. It is also clear from the evidence of Mr Smith that he relies upon those pages of the manual while he is conducting the investigations required to be conducted by section 245 of the Act and, in particular, when he is required to determine whether or not there was a valid and sufficient reason for an elector's failure to vote at an election.

18. It is common practice within Commonwealth agencies for there to be guidelines which seek to achieve consistency of administrative decision making. It is, in my view, beyond argument that the citizen is entitled to expect to be dealt with on a fair basis and that part of the fairness is that the decisions that are made in relation to the various persons in the same general situation will be consistent with each other. Such consistency in decision making depends upon the existence of guidelines and, in the ordinary course of events, such guidelines will be disclosed by the agency as a matter of public record. It would clearly be an unsatisfactory situation if Divisional Returning Officers in different electorates used different criteria to determine whether or not they were satisfied that the defaulting elector had a valid and sufficient reason for the failure to vote.

19. The present situation is different to the ordinary case where one might expect that guidelines are publicly available. In this case the guidelines relate to the circumstances in which a Divisional Returning Officer might be satisfied that a defaulting elector had a valid and sufficient reason for the failure to vote. Clearly, on the material before the Tribunal, the Divisional Returning Officers are required to rely primarily on the responses to their Penalty Notices. It is clear, on the material, that they do not conduct face to face investigations with each defaulting voter and that they rely, to a large extent, on the honesty of the responses. That procedure depends upon those responses being a frank and factual statement of the facts rather than an excuse which is known to be an acceptable excuse to the electoral office. To illustrate my point, it may be well known that illness on the day is accepted as a valid and sufficient reason for a failure to vote in an election. It may be the case very often when that response is given to a Divisional Returning Officer that that Divisional Returning Officer will be satisfied as to the explanation and take the matter no further. It may also be the case that the Divisional Returning Officer is not so satisfied and may decide to seek corroborating evidence to justify the claim. As to how those procedures are conducted is a matter of primary concern to the respondent Commissioner. There is, of course, the public interest in the matter but the primary public interest is as expressed in section 245 of the Electoral Act, and that is that persons who fail to vote in an election without a valid and sufficient reason for such failure are to be dealt with under the provisions of section 245. That is the overwhelming public interest in the matter as determined by the Parliament and I can see no basis for reading down the provisions of section 245 to arrive at a situation as submitted by the applicant that the overriding public interest is something to do with the right of the public to know what circumstances will be accepted as valid and sufficient reasons for a failure to vote. The techniques adopted by the Electoral Office in the administration of section 245 of the Electoral Act are, in my view, lawful methods or procedures for detecting, investigating or dealing with matters arising out of breaches of section 245 of the Electoral Act and the disclosure of those methods or procedures would or would be reasonably likely to prejudice the effectiveness of those methods or procedures. If there can be any doubt as to the prejudice that is likely by the grant of access in this case, that doubt is resolved by the applicant's evidence that he would publish the relevant pages of the manual if he were granted access to them.

20. My attention was directed to a number of authorities but in particular, the decision Re Mickelberg and Australian Federal Police (1984) 6 ALN N176. In discussing paragraph 37(2)(b) of the Freedom of Information Act 1982 the Tribunal had this to say:

"Secondly, it is one thing for observers to deduce, with varying success

from every day experience, media reports and other informal sources,

what appear to be the methods and procedures employed by such agencies

to achieve their objects, but it is quite another thing to have spelt

out publicly from the agencies, own documents or in the proceedings of

the Tribunal such as this what those methods and procedures are, the

risk that they may be less effective would seem to be increased if a

person endeavouring to combat or evade them, has authoritative knowledge

of them."

With respect to that Tribunal I agree that in a case such as the present, where the Divisional Returning Officer is required to enforce the provisions of section 245 of the Electoral Act, to disclose the basis on which the Divisional Returning Officer will proceed would be to seriously impede his administration of those provisions of the Act.

21. I turn now to the claim for exemption under paragraph 40(1)(d). I think it is clear from what I have already said that access to the two pages of the manual would have a substantial adverse effect on the proper and efficient conduct of the operations of the Electoral Office and that access should therefore be refused on that ground, unless the document is in respect of a matter or matter in the document, the disclosure of which under the Act would, on the balance, be in the public interest. I think the public interest in this matter is quite clear. It is set out by the Parliament in section 245 of the Act which deals with compulsory voting. Clearly there is an interest in a defaulting voter being dealt with according to law, but that is a matter for the Courts, not for the Divisional Returning Officer. The processes before the Divisional Returning Officer are administrative procedures designed to deal with persons who prefer to have their matter dealt with summarily by the Divisional Returning Officer, rather than go through the process in the Court. The protection of the individual in the context of section 245 of the Electoral Act is a matter for the Courts. Any aggrieved elector who feels that he or she has not been properly dealt with by the Divisional Returning Officer may resort to the Courts as the section itself requires. In those circumstances I cannot see any public interest factor which overrides the Parliament's intention that Australia is to have a system of compulsory voting and that electors who fail to vote without a valid and sufficient reason for such failure have some inherent rights within the terms of that legislation over and above their right to have their failure dealt with by a Court. The overriding public interest is therefore in the appropriate administration which includes efficient administration of the provisions of section 245. To disclose the documents to the applicant, in the knowledge that he intends to publish the documents, would, in my view, have a substantial adverse effect on the administration of the provisions of section 245 by Divisional Returning Officers. The public interest is that those provisions be administered efficiently with the ultimate right of process in the Courts if the elector is not satisfied with the decisions of the Divisional Returning Officer.

22. For these reasons I am satisfied that the documents in question are exempt documents within the terms of sections 37 and 40 of the Act and that the decision of the acting Commonwealth Electoral Officer, which is under review, should be affirmed.

23. The applicant made certain submissions about costs but there will be no recommendation for costs and there will be no certificate for a refund of the prescribed application fee.