Applicant: CR
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
FOI Request: Freedom of Information Request No. LEX 4640
Your FOI Request
On 25 August 2023 you wrote to the Australian Electoral Commission (
AEC) seeking access under
the
Freedom of Information Act 1982 (the FOI Act) to:
1. Al documents pertaining to the design of the 2023 referendum bal ot 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 bal ot paper.
2. Al documents, reports, evaluations, or assessments carried out by the AEC or external parties
concerning the "YES/NO" voting method for the 2023 referendum bal ot paper. This specifical y
includes materials exploring the use of "YES/NO" as opposed to traditional methods such as marking,
ticking, or crossing boxes.
3. Al 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.
On 25 September 2023, we provided you with a decision letter in response to item 3 of your FOI
request.
This letter contains the decision on the remainder of your request, and is your final decision letter for
this request.
Identification of Documents
I identified 35 documents that fell within the scope of item 1 and 2 of your FOI Request (the ‘Relevant
Documents’).
I did this by contacting the relevant areas of the AEC and having them complete relevant searches.
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 ful : Documents 17, 19a, 19b
• Edited Copies: Documents 1, 1a, 3, 5, 6, 7, 18, 19, 20
• Refuse access: Documents, 1b, 1c, 2, 3a, 4a, 5a, 6a, 6b, 6c, 6d, 7a, 7b, 8, 9, 10, 11, 12, 13,
14, 15, 16,
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. At achment 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
Document Document Descrip�on
Decision on access/Redac�ons applied
Page no.
No.
1
FW_Updated Referendum bal ot
Release in part
1
paper
Sec�on 47F – personal privacy
1a
RE_ Updated Referendum bal ot
Release in part
2
paper [SEC=OFFICIAL]
Sec�on 47F – personal privacy
1b
22-1724 Sample Referendum bal ot
Exempt
paper_Long Ques�on_06
Sec�on 47E(d) – certain opera�ons of the
agency
1c
22-1724 Sample Referendum bal ot
Exempt
paper_06
Sec�on 47E(d) – certain opera�ons of the
agency
2
Referendum Bal ot Paper Style
Exempt
Guide_05
Sec�on 47E(d) – certain opera�ons of
agency
3
Referendum Bal ot Paper Style
Release in part
3
Guide for urgent review
Sec�on 42 – LPP
Sec�on 47F – Personal privacy
Sec�on 22 – out of scope
3a
Referendum Bal ot Paper Style
Exempt
Guide_01
Sec�on 47E(d) – certain opera�ons of
agency
4
Sample Referendum
Release in part
17
BP_incl_atachments.pdf
Sec�on 47F- Personal privacy
Sec�on 22 – Out of scope
4a
22-1724 Sample Referendum bal ot
Exempt
paper_QLD_05.pdf
Sec�on 47E(d) – certain opera�ons of the
agency
4b
22-1724 Sample Referendum bal ot
Exempt
paper_05.pdf
Sec�on 47E(d) – certain opera�ons of the
agency
5
Sample Referendum
Release in part
25
BP_incl_atachments.pdf
Sec�on 47F- Personal privacy
5a
22-1724 Sample Referendum bal ot
Exempt
paper_SAMPLE.pdf
Sec�on 47E(d) – certain opera�ons of the
agency
6
Sample Referendum
Release in part
34
BP_incl_atachments.pdf
Sec�on 47F- Personal privacy
Sec�on 22 – out of scope
6a
22-1724 Sample Referendum bal ot
Exempt
paper_reworde.pdf
Sec�on 47E(d) – certain opera�ons of the
agency
6b
22-1724 Sample Referendum bal ot
Exempt
paper_QLD_WM.pdf
Sec�on 47E(d) – certain opera�ons of the
agency
6c
22-1724 Sample Referendum bal ot
Exempt
paper_WM.pdf
Sec�on 47E(d) – certain opera�ons of the
agency
6d
22-1724 Sample Referendum bal ot
Exempt
paper_reworde.pdf
Sec�on 47E(d) – certain opera�ons of the
agency
7
Sample Referendum
Release in part
39
BP_incl_atachments.pdf
Sec�on 47F- Personal privacy
7a
22-1724 Sample Referendum bal ot
Exempt
paper_QLD_02.pdf
Sec�on 47E(d) – certain opera�ons of the
agency
7b
22-1724 Sample Referendum bal ot
Exempt
paper_02.pdf
Sec�on 47E(d) – certain opera�ons of the
agency
8
FW: Legal Services Objec�veIM
Exempt
Ballot Paper Approval Workflow
Sec�on 42 - LPP
[SEC = OFFICIAL]
9
FW: Legal Services Objec�veIM
Exempt
Ballot Paper Approval Workflow
Sec�on 42 - LPP
[SEC=OFFICIAL] (A3034558)
10
Legal Services Objec�veIM Bal ot
Exempt
Paper Approval Workflow
Sec�on 42 - LPP
[SEC=OFFICIAL] (A3034559)
11
Legal Services Objec�veIM Ballot
Exempt
Paper Approval Workflow
Sec�on 42 - LPP
[SEC=OFFICIAL] (A3037653)
12
Legal Services Objec�veIM Bal ot
Exempt
Paper Approval Workflow
Sec�on 42 - LPP
[SEC=OFFICIAL] (A3037880)
13
Legal Services Objec�veIM Bal ot
Exempt
Paper Approval Workflow
Sec�on 42 - LPP
[SEC=OFFICIAL] (A3038818)
14
Legal Services Objec�veIM Bal ot
Exempt
Paper Approval Workflow
Sec�on 42 - LPP
[SEC=OFFICIAL] (A3038819)
15
Legal Services Objec�veIM Ballot
Exempt
Paper Approval Workflow
Sec�on 42 - LPP
[SEC=OFFICIAL] (A3044823)
16
Request_ Legal Services
Exempt
Objec�veIM Ballot Paper Approval
Sec�on 42 - LPP
Workflow _SEC_OFFICIAL_
(A3032705)
17
Objec�veIM Ballot Paper Approval
Release in full
42
Workflow - Referendum
18
FW_ Updated Referendum bal ot
Release in part
43
paper _SEC_OFFICIAL_ (A3104128)
Sec�on 47F
19
RE_ For Clearance Task - Clearance -
Release in part
44
TAS - Minute - Ballot Paper
Sec�on 47F
Endorsement - Ref 2023 - Delivery
and Support Branch _SEC_OFFIC
(A3104132)
19a
Atachment to email
Release in full
47
19b
Atachment to email
Release in full
48
20
Electoral Commissioner - Ballot
Release in part
49
Paper Approval - Ref 2023.pdf
Sec�on 47F – personal privacy
Sec�on 42 - LPP
Attachment B – Reasons – Freedom of
Information Request No. LEX4640
Authority
As the Chief Legal Officer, Legal Services Branch, I am an authorised decision-maker under
section 23 of the FOI Act.
Retrieval process To identify documents for your request, I arranged for relevant staff likely to be able identify
documents to undertake a comprehensive search of the relevant electronic holdings used by the
AEC.
Relevant Documents
With regard to the Relevant Documents identified in At achment A, I have decided:
Access in full
a) to grant access in full to Documents 17, 19a, 19b
Edited copies
b) to grant access to an edited copy of documents 1, 1a, 3, 5, 6, 7, 18, 19, 20 from which
exempt matter and irrelevant information has been deleted under section 22 of the FOI Act.
Refuse access
c) To refuse access to Documents, 1b, 1c, 2, 3a, 4a, 5a, 6a, 6b, 6c, 6d, 7a, 7b, 8, 9, 10, 11, 12,
13, 14, 15, 16, as providing access would be contrary to the public interest or they are exempt
documents.
Material taken into account I have taken the following material into account in making my decision:
a) the content of the documents that fall within the scope of your FOI Request;
b) the FOI Act, specifically section 22, 42, 47E(d) and 47F.
c) the guidelines (‘FOI Guidelines’) issued by the Australian Information Commissioner under
section 93A of the FOI Act;
d) the FOI Guidance Notes, July 2011 issued by the Department of Prime Minister and Cabinet;
and
e) the
Privacy Act 1988.
Detailed Reasons Attachment A indicates each Relevant Document to which access is refused or access is granted. My
reasons for refusing or granting access are given below.
Exemptions Section 42 – Legal Professional Privilege Findings I found that the documents, as identified in Attachment A, were documents of such a nature that they
would be privileged from production in legal proceedings on the ground of legal professional
privilege.
Consideration
Under subsection 42(1) of the FOI Act, a document is an exempt document if it is of such a nature
that it would be privileged from production in legal proceedings on the ground of legal professional
privilege.
Section 42 of the FOI Act provides:
42 Documents subject to legal professional privilege
(1)
A document is an exempt document if it is of such a nature that it would be
privileged from production in legal proceedings on the ground of legal professional
privilege.
(2)
A document is not an exempt document because of subsection (1) if the person
entitled to claim legal professional privilege in relation to the production of the
document in legal proceedings waives that claim.
(3)
A document is not an exempt document under subsection (1) by reason only that:
(a)
the document contains information that would (apart from this subsection) cause
the document to be exempt under subsection (1); and
(b)
the information is operational information of an agency.
Note: For operational information, see section 8A.
The documents identified are documents that:
1. Clearly demonstrate a legal adviser-client relationship.
2. Are communications for the purpose of giving or receiving legal advice.
3. Contain independent and confidential legal advice.
The decision maker acknowledges the waiver of privilege in regard to certain legal advice received
by AGS, that has since been published by the AEC. This legal advice has not been considered
exempt in the making of this decision.
Outcome Accordingly, I am satisfied that the documents identified fall within the scope of the exemption for
legal professional privilege and are therefore exempt from disclosure.
Section 47E – Public interest conditional exemptions - certain operations of
agencies Findings
I found that the documents, as identified in Attachment A contained information, such as unique
ballot paper content, that could be used to reproduce ballot papers. This information would, or could
reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of
the operations of the agency.
Consideration
Section 47E of the FOI Act conditionally exempts a document if its disclosure under the FOI Act
would or could reasonably be expected to have a substantial adverse effect on the proper and
efficient conduct of the operations of an agency.
Paragraph 47E(d) of the FOI Act provides:
A document is conditional y exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the following:
…..
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an
agency.
In making my decision I had regard to:
a. the extent to which the information is well known; and
b. the extent to which, and how, disclosure of the information would or could reasonably
be expected to adversely effect the proper and efficient conduct of the operations of
AEC.
The AEC is an independent statutory authority. It is funded to deliver one purpose and one outcome:
Maintain an impartial and independent electoral system for eligible voters through active electoral roll
management, efficient delivery of polling services, and targeted education and public awareness
programs. It can therefore be said that the AEC’s primary function is to deliver the voting franchise.
An important part of delivering the voting franchise is ensuring the integrity and security of the ballot
paper. This includes electronic ballot paper files. If members of the public were able to reproduce
ballot papers this would cause a substantial adverse effect on the AEC’s operations.
Initial outcome
Accordingly, I am satisfied that the documents identified fall within the scope of the conditional
exemption for certain operations of agencies provided by section 47E of the FOI Act.
Weighing of public interest factors
Under subsection 11A(5) of the FOI Act, access to a document covered by a conditional exemption
must be given unless it would be contrary to the public interest. I have weighed public interest factors
follows.
I find that the factors in favour of disclosure the documents identified are:
a. promoting the objects of the Act, particularly in increasing scrutiny, discussion,
comment and review of the Government's activities (section 3(2)(b) of the FOI Act);
b. informing debate on a matter of public importance, namely how the AEC conducts
referendums and applies the relevant legislation; and
c. facilitating access to information to members of the public that allows them to be
satisfied that proper processes have been followed by the agency.
I find that the factors against disclosure of the documents identified are that:
a. disclosure could reasonably be expected to impact the security and integrity of the
ballot paper;
b. disclosure could reasonably be expected to prejudice the AEC's management function
and ability to perform its functions;
c. disclosure could reasonably be expected to prejudice the ef ective and efficient
functioning of the AEC.
In accordance with subsection 11B(4) of the FOI Act, I excluded from my consideration the following
matters:
a. access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government;
b. access to the document could result in any person misinterpreting or
misunderstanding the document;
c. the author of the document was (or is) of high seniority in the agency to which the
request for access to the document was made;
d. access to the document could result in confusion or unnecessary debate.
In my view, having regard to the above considerations and factors set out in sections 11B and 47E of
the FOI Act, I have decided that the balancing of considerations weighs in favour of not releasing the
section 47E information in the released documents.
Final Outcome
Accordingly, I am satisfied that the documents identified in At achment A are conditionally exempt
under section 47E of the FOI Act and, because disclosure would be contrary to the public interest,
the documents should be treated as exempt from disclosure under the FOI Act.
Section 47F - personal privacy Findings I found that the documents, as identified in Attachment A contained the personal information of AEC
staff, and third parties, including names and contact details.
Consideration Section 47F of the FOI Act conditionally exempts a document if its disclosure under the FOI Act
would involve the unreasonable disclosure of personal information about any person (with certain
exceptions regarding the disclosure to a person of their own personal information).
Subsection 47F(1) of the FOI Act provides:
47F Public interest conditional exemptions—personal privacy
General rule
1.
A document is conditional y exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a deceased
person).
In making my decision I had regard to:
• the extent to which the information is well known;
• whether the person to whom the information relates is known to be (or to have been)
associated with the matters dealt with in the document;
• the availability of the information from publicly accessible sources;
• Part 6 (Conditional Exemptions) of the FOI Guidelines;
• Submissions made by third parties in response to consultation.
I determined that the personal information identified - that is the names, contact details, role titles and
other personal information - in these documents is not well known, nor is it available from publicly
accessible sources.
Initial outcome
Accordingly, I am satisfied that the documents identified fall within the scope of the conditional
exemption for personal privacy provided by section 47F of the FOI Act.
Weighing of public interest factors
Under subsection 11A(5) of the FOI Act, access to a document covered by a conditional exemption
must be given unless it would be contrary to the public interest.
I consider that the public interest in releasing the full names of these individuals is extremely low. I
have considered the relevant factors in s 11B of the FOI Act, and the release of this information
would not aid the public in scrutinising, commenting or reviewing the activities of the AEC, nor would
it further inform any public debate on a matter of importance (s 11B(3)(b)).
I have also balanced this public interest with the consideration of whether this disclosure of personal
information would be unreasonable.
a. The disclosure of this information could reasonably be considered to prejudice the
relevant individuals’ right to privacy.
b. The disclosure of AEC staff members’ and/or third parties names and personal
information may expose these parties to harm or a continued harassment campaign.
In accordance with subsection 11B(4) of the FOI Act I excluded from my consideration the following
matters:
a. access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government;
b. access to the document could result in any person misinterpreting or misunderstanding
the document;
c. the author of the document was (or is) of high seniority in the agency to which the request
for access to the document was made;
d. access to the document could result in confusion or unnecessary debate.
In my view, having regard to the above considerations and the factors set out in sections 11 and 47F
of the FOI Act, I have decided that the balancing of considerations weighs in favour of not releasing
the personal information in the released document.
Final Outcome Accordingly, I am satisfied that the documents identified in At achment A are conditionally exempt
under section 47F of the FOI Act and, because disclosure would be contrary to the public interest,
that the documents should be treated as exempt from disclosure under the FOI Act.
Preparation of edited copy In accordance with section 22 of the FOI Act, I considered whether it is possible and practicable to
prepare an edited copy of the Relevant Documents from which exempt and irrelevant material are
redacted.
Findings I found that:
• it is possible to prepare an edited copy of some documents (identified in Attachment A as
“release in part”) modified by deletions, ensuring that:
o access to the edited copy would be required to be given under section 11A (access to
documents on request) of the FOI Act; and
o the edited copy would not disclose any information that would reasonably be regarded
as irrelevant to the FOI Request;
• it is reasonably practicable for the AEC to prepare the edited copy, having regard to:
o the nature and extent of the modifications; and
o the resources available to modify the document; and
• it is not apparent that you would decline access to the edited copy.
o I found that it is not possible or practical to prepare an edited copy of some
documents (identified in Attachment A as “exempt”), due to the nature and extent of
the modifications that would be required to ensure that no exempt information is
released.
I had regard to section 22 of the FOI Act and paragraphs 3.95–3.100 of the FOI Guidelines.
Outcome I concluded that it is both possible and practicable to prepare an edited copy of the documents that
are identified in At achment A as “release in part.”
I concluded that it is not possible or practicable to prepare an edited copy of the documents that are
identified in At achment A as “exempt.”
Attachment C - FOI Review rights
Internal review
Under section 54 of the FOI Act, you may apply in writing to the AEC for an internal review of my
decision. The internal review application must be made within 30 days of the date of this letter.
Where possible, please attach reasons why you believe review of my decision is necessary. The
internal review wil be carried out by another officer within 30 days.
Information Commissioner review
Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner to
review my decision. An application for review by the Information Commissioner must be made in
writing within 60 days of the date of this letter, and be lodged in one of the following ways:
online: https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints
email:
xxxxx@xxxx.xxx.xx
post: Director of FOI Dispute Resolution, GPO Box 5218, Sydney NSW 2001
fax: 02 9284 9666
More information about Information Commissioner review is available on the Office of the Australian
Information Commissioner website at
https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/information-commissioner-review/
FOI Complaints
If you are unhappy with the way we have handled your FOI request, please let us know what we
could have done better. We may be able to rectify the problem. If you are not satisfied with our
response, you can make a complaint to the Australian Information Commissioner. A complaint to the
Information Commissioner must be made in writing. Complaints can be lodged in one of the following
ways:
online:
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints email:
xxxxx@xxxx.xxx.xx post: GPO Box 5218 Sydney 2001
More information about complaints is available on the Office of the Australian Information
Commissioner at
https:/ www.oaic.gov.au/freedom-of-information/reviews-and-complaints/make-an-
foi-complaint/
If you are not sure whether to lodge an Information Commissioner review or an Information
Commissioner complaint, the Of ice of the Australian Information Commissioner has more
information at: https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/.
Document Outline
